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3,800 | https://www.mspb.gov/decisions/nonprecedential/FARRELL_AMY_CH_0752_17_0015_I_1_FINAL_ORDER_1994236.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
AMY FARRELL,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-0752 -17-0015 -I-1
DATE: January 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Amy Farrell , Des Moines, Iowa, pro se.
Lisa Hosman -Davis , Esquire, Minneapolis, Minnesota, 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 . For the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
reasons set forth below, the appellant’s petition for review is DISMISSED as
untimely filed without good cause shown. 5 C.F.R. § 1201.114 (e), (g).
BACKGROUND
¶2 The relevant background information, as stated in the initial decision, is not
in material dispute. The appellant applied for disability retirement in January
2015 and filed a formal equal employment opportunity complaint with the agency
in May 2015, alleging that her decision to apply for disability retirement
constituted a constructive discharge. Initial Appeal File (IAF), Ta b 6, Initial
Decision (ID) at 2. The appellant’s disability retirement was effected on
September 15, 2015. ID at 1.
¶3 On July 29, 2016, the agency issued a final agency decision, in which it
found that it had not discriminated against the appellant. ID at 2. The agency’s
decision informed the appellant of her right to file an appeal with the Board
within 30 days of her receipt of the decision. Id.
¶4 On October 4, 2016, the appellant filed this appeal wi th the Board.2 IAF,
Tab 1. The administrative judge ordered the appellant to file evidence and
argument to establish the timeliness of her appeal and to make a nonfrivolous
allegation of Board jurisdiction. ID at 2. On November 8, 2016, a fter the
appel lant failed to respond to the orders, the administrative judge dismissed the
appeal for lack of jurisdiction without holding the requested hearing.3 ID at 2 -6.
¶5 On or about December 7, 2016, the appellant requested an extension to file
a petition for review of the initial decision. Petition for Review (PFR) File,
Tab 1. The Office of the Clerk of the Board granted the appellant’s request and
2 Although the administrative judge indicated that the appeal was filed on October 5,
2016, ID at 2, the electronic date stamp on the initial appeal indicates that it was filed
the day before, IAF, Tab 1.
3 Because she dismissed the appeal on jurisdictional grounds, the administrative judge
did not address the apparent untimeliness of the appeal. ID at 6.
3
informed her that she may file a petition on or b efore January 12, 2017. PFR
File, Tab 2 at 1. The appellant was informed that if she did not file a petition by
January 12, 2017, the initial decision would remain the final decision of the
Board. Id.
¶6 On January 15, 2017, the appellant filed an initia l appeal form with the
Board , again alleging that she felt forced into retirement. PFR File, Tab 3 at 4.
On January 18, 2017, t he Clerk’s Office informed the appellant that the Board
would consider her submission to be a petition for review of the initia l decision ,
but as such it appeared to be untimely filed . PFR File, Tab 4 at 1. The Clerk’s
Office set a deadline of February 2, 2017, for her to file a motion to either accept
the filing as timely or waive the time limit for good cause. Id. at 1-2. The
appellant filed no such motion by the deadline.
¶7 On February 10, 2017, the agency filed a response in opposition to the
petition for review , arguing that the petition was untimely with no good cause
shown . PFR File, Tab 5. On or about February 17, 2017, the Board’s Central
Regional Office received a submission from the appellant , which has been
docketed as a reply to the agency’s response. PFR File, Tab 6. On August 25,
2017, the appellant filed a motion to request that the Board waive the time limit
of her petition for review for good cause . PFR File, Tab 10.
DISCUSSION OF ARGUME NTS ON REVIEW
¶8 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 th at
the initial decision was received more than 5 days after it was issued, within
30 days after the party received the initial decision. 5 C.F.R. § 1201.114 (e). The
Board, however, may grant an extension of the time limit upon a showing of good
cause. 5 C.F.R. § 1201.114 (f).
¶9 Here, the Office of the Clerk of the Board granted the appellant an
extension of time beyond the deadline set forth in section 1201.114(e), until
4
January 12, 2017, to file her petition for review. But the appellant did not file her
petition until January 15, 2017. It was therefore 3 days late.
¶10 The Board will excuse the unt imely filing of a petition for review only upon
a showing of good cause for the delay. Via v. Office of Personnel Management ,
114 M.S .P.R. 632 , ¶ 5 (2010); 5 C.F.R. § 1201.114 (g). To establish good cause
for the untimely filing, a party must show that she exercised due diligence or
ordinary prudence under the particu lar 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 a ffected her ability to comply
with the time limits or of unavoidable casualty or misfortune that similarly sh ows
a causal relationship to her inability to timely file h er petition for review.
Moorman v. Department of the Army , 68 M.S.P.R. 60 , 62 -63 (1995), aff’d ,
79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶11 In her request for an extension of time to file a petition for review, the
appell ant noted that she was disabled and caring for three children, one of whom
was also disabled. PFR File, Tab 1 at 3 -4. She also asserted that she lost her
home in a fire in August 2015, that someone stole $40,000 from her, and that she
was involved in multiple lawsuits. Id. at 4. In her petition for review, she
claimed to have both physical and mental disabilities. PFR File, Tab 3 at 4 -5. In
her reply to the agency’s response to her petition, the appellant again referenced
some of these difficulties , as well as some problems she experienced with her
computer and mail delivery. PFR File, Tab 6 at 3.
¶12 In her motion to waive the time limit for filing the petition for review, the
appellant acknowledged that her petition was untimely by 3 days and refer enced
5
the same difficulties she discussed in her previous pleadings.4 PFR File, Tab 10
at 4-5, 7, 9. She seemed to assert that the primary reason that her petition was
untimely was that her mailman dropped a package of hers and ran it over,
destroying a flash drive in the process. Id. at 9. She stated that , although she had
a back -up of the flash drive on her personal computer, she had sent her computer
away for repairs. Id.
¶13 However , the appellant did not expl ain what was on the flash drive, where
she was sending it, or how it was relevant to her appeal . Furthermore , assuming
arguendo that the flash drive contained her petition for review and that she was
sending it to the Board, she did not explain why she could not file a second
extension to file her petition for review prior to the January 12, 2017 deadline .
Accordingly, we find that the appellant’s assertions regarding her problems with
her computer and mail delivery fail to establish good cause for the untimely filing
of her petition for review. See Heath v. Department of Agriculture , 109 M.S.P.R.
684, ¶ 6 (2008) (finding that the loss of a thumb drive did not establish good
cause for the agency’s untimely filing when the agency representative failed to
request a further extension of the filing deadline ).
¶14 Regarding the appellant’s disabilities, the Board will fin d good cause for
waiver of its filing time limits when a party demonstrates that she suffered from
an illness that affected her ability to file on time. Lacy v. Department of the
Navy , 78 M.S.P.R. 434 , 437 (1998). To establish that an untimely filing was the
resul t of an illness, the party must (1) identify the time period during whic h she
suffered from the illness, (2) submit medica l evidence showing that she suffered
from the alleged illness during that time period, and (3) explain how the illness
4 As stated earlier, the appellant’s motion was due by February 2, 2017, and she filed it
with the Board on August 25, 2017. PFR File, Tabs 4, 10. It was therefore untimely
filed by 6 months. Although the appellant has failed to establish good cause for the
untimeliness of her motion, we nonetheless consider it and find that it does not establish
good cause for her untimely filed petition for review.
6
prevented her from timely filing her submission or a request for an extension of
time. Id. The appellant submitted some evidence regar ding her illnesses . PFR
File, Tab 6 at 7-34, 45 -49, 102, 107-14, 120-23, 125, 152, 160, 181 . This
evidence, however, dates back to 2014 and early 2015 , approximately 2 years
prior to her deadline for filing a petition for review . Id. More importantly, the
appellant has not explained how her illness es prevented her from timely filing her
petition . Accordingly, she has failed to demonstrate good cause for her untimely
filing based on her illness. See Lacy , 78 M.S.P.R. at 437.
¶15 Regarding the appellant’s other potential excuses for her untimely filing ,
such as the loss of her home and her involvement in multiple lawsuits , she has
similarly failed to explain how these events contributed to the untimeliness of her
petition for review. See Mitchell v. U.S. P ostal Service , 111 M.S.P.R. 346 , ¶¶ 3 -8
(2009) (finding that an appellant who had a disabled son, was trying to secure
unemploymen t benefits, and was searching for a new home after being evicted,
failed to show good cause for his untimely filed petition for review), aff’d , 361 F.
App’x 132 (Fed. Cir. 2010).
¶16 Although the length of the delay was relatively short, and the appellant is
proceeding pro se, we find she has not shown that circumstances beyond her
control prevented her from filing a timely petition for review, or that she
exercised due diligence or ordinary prudence under the circumstances.
Accordingly, we dismiss the petit ion for review as untimely filed without a
showing of good cause for the delay . See Melendez v. Department of Homeland
Security , 112 M.S.P.R. 51 , ¶ 16 (2009) (finding that the appellant did not
establish good cause for his 3 -day filing delay, notwithstanding his pro se status).
¶17 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 appellant’s alleged involuntary retirement .
7
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how co urts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have 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 wh ich 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 availabl e at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposi tion of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim 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
9
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for 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).
10
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competen t jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for jud icial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informati on about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Pra ctice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono r epresentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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 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.
11
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for t he courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
WASHINGTON, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | FARRELL_AMY_CH_0752_17_0015_I_1_FINAL_ORDER_1994236.pdf | 2023-01-18 | null | CH-0752 | NP |
3,801 | https://www.mspb.gov/decisions/nonprecedential/DAVIS_LEONARD_J_DA_0752_17_0372_I_1_FINAL_ORDER_1994244.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LEONARD J. DAVIS,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DA-0752 -17-0372 -I-1
DATE: January 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Leonard J. Davis , San Antonio, Texas, pro se .
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
dismissed his appeal of the agency’s removal action for failure to prosecute . On
petition for review, the appellant makes the following arguments: he is not
familiar with the Bo ard’s legal process; he was under the mistaken impression
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
that the agency and the Board are the same office; he did not find out that his
attorney was no longer representing him until after the issuance of the initial
decision; and he is the process of fin ding another attorney. Petition for Review
File, Tab 1. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or invo lved 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 s ection 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 assertions, without more, do not persuade us that the
administrative judge abused her discret ion in dismissing this appeal. W e find that
the administrative judge properly exercised her discretion to impose the sanction
of dis missal with prejudice under the circumstances of this case. See Williams v.
U.S. Postal Service , 116 M.S.P.R. 377, ¶¶ 7 -9 (2011); 5 C.F.R. § 1201.43 (b). The
appellant has not established that he should not be accountable for any errors of
his attorney because he has not established that his own diligent efforts to
prosecute his appeal were thwarted by his attorney. See, e.g. , Retzler v.
Department of the Navy , 114 M.S.P.R. 361 , ¶ 5 (2010); Sumrall v. Department of
the Air Force , 85 M.S.P.R. 597 , ¶ 12 (2000). The appellant has not shown that he
diligently monitored his appeal, as required as a registered e -filer. Initial Appeal
File, Tab 1 at 2; see 5 C.F.R. § 1201.14 (e)(1), (j)(3).
3
¶3 Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
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
appropria te 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 applic able to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choic es of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful 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 pet ition for review “raises no challenge to the Board’s
6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this deci sion. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | DAVIS_LEONARD_J_DA_0752_17_0372_I_1_FINAL_ORDER_1994244.pdf | 2023-01-18 | null | DA-0752 | NP |
3,802 | https://www.mspb.gov/decisions/nonprecedential/DONLON_BRANNON_M_DC_0752_15_0623_I_1_FINAL_ORDER_1994250.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BRANNON M. DONLON,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DC-0752 -15-0623 -I-1
DATE: January 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kerrie D. Riggs , Esquire, and Michael Kator , Esquire, Washington, D.C.,
for the appellant.
Joanne M. Halley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Vice Chairman Harris recused herself and
did not participate in the adjudication of this appeal.
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s removal action . 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
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
disputes the administrative judge’s dete rmination to sustain certain charges and
contends the penalty of removal does not promote the efficiency of the service
and is unduly harsh . Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous a pplication of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affec ted the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS2
You may obtain revie w of t his final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the 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
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in th e notice, the
Board cannot advise which op tion is most appropriate in any matter.
3
immediately review the law applicable to your claims a nd carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to d ecide which one applies to your particular case. If 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, a n appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the c ourt’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federa l Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorne y nor warrants that
any attorney will accept representation in a given case.
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 appeal able to the Board and that 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. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file wit h 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 r epresentation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websit es, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportuni ty Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then 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:
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
Enha ncement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of compete nt jurisdiction.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 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.
6
If you submit a petition for judic ial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 | DONLON_BRANNON_M_DC_0752_15_0623_I_1_FINAL_ORDER_1994250.pdf | 2023-01-18 | null | DC-0752 | NP |
3,803 | https://www.mspb.gov/decisions/nonprecedential/CHAPMAN_SHERYL_EVON_DC_1221_17_0376_W_1_REMAND_ORDER_1994258.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SHERYL EVON CHAPMAN,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DC-1221 -17-0376 -W-1
DATE: January 18, 2023
THIS ORDER IS NONPRECEDENTIAL1
Sheryl Evon Chapman , Jacksonville, Florida, pro se.
Judith A. Fishel , APO, APO/FPO Europe, 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 individual right of action (IRA) appeal for lack of jurisdiction . For
the reasons discussed below, we GRANT the appellant’s petition for review and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
REMAND the case to the regiona l office for further adjudication in accordance
with this Remand Order.
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 The appellant previously held a GS -13 Human Resources Specialist position
with the agency in Wiesbaden , Germany. Initial Appeal File (IAF), Tab 12 at 12.
In August 2016, the agency proposed her removal for (1) declining a Priority
Placement Program offer and (2) failure to abide by the terms of a rotational
agreement. Id. at 12 -14. After receiving her r esponse, the deciding official
upheld the removal, effective October 2016. Id. at 16 -18.
¶3 On March 12, 2017, the appellant filed the instant appeal. IAF, Tab 1. The
administrative judge construed it as an IRA appeal and provided the
corresponding jurisdi ctional burden. IAF, Tab 3. He ordered the appellant to file
a statement, accompanied by evidence, listing the following: (1) her protected
disclosures or activities; (2) the dates she made the disclosures or engaged in the
activities; (3) the individua ls to whom she made any disclosures; (4) why her
belief in the truth of any disclosures was reasonable; (5) the actions the agency
took or failed to take, or threatened to take or fail to take, against her because of
her disclosures or activities; (6) why she believed a disclosure or activity, or a
perception of such a disclosure or activity, was a contributing factor to the
actions; and (7) the date of her complaint to the Office of Special Counsel (OSC)
and the date that it notified her it was terminating its investigation of her
complaint, or if she had not received such notice, evidence that 120 days have
passed since she filed her complaint with OSC. Id. at 7.
¶4 Pursuant to the jurisdictional order, the appellant had until March 24, 2017,
to respond. Id. at 1, 7. Within that deadline, the appellant submitted several
pieces of correspondence with OSC. IAF, Tabs 7, 9-10. Several days after her
jurisdictional deadline, the appellant filed a narrative jurisdictional argument.
IAF, Tab 11. The agency s ubmitted a timely response. Compare IAF, Tab 3 at 7,
3
with IAF, Tab 5 at 3, Tab 8 at 1, Tab 12. Despite the administrative judge’s
instruction that the record on jurisdiction was then closed, IAF, Tab 3 at 7 -8, the
appellant filed a reply, IAF, Tab 13, wh ich the administrative judge did not
consider, IAF, Tab 14, Initial Decision (ID) at 3.
¶5 Without holding the requested hearing, the administrative judge dismissed
the appellant’s IRA appeal. ID. The appellant has filed a petition for review.
Petition for Review (PFR) File, Tab 1. The agency has filed a response. PFR
File, Tab 3.
¶6 To establish jurisdiction in an IRA appeal, an appellant must show by
preponderant evidence that she exhausted her remedies before OSC, and make
nonfrivolous allegations that (1 ) she made a disclosure described under 5 U.S.C.
§ 2302 (b)(8) or engaged in a protected activity described under 5 U.S.C.
§ 2302 (b)(9)(A)( i), (B), (C), or (D); and (2) the disclosure or protected activity
was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302 (a).2 Corthell v. Department of
Homeland Security , 123 M.S.P.R. 417 , ¶ 8 (2016). A nonfrivolous allegation is
one that (1) is more tha n conclusory , (2) is plausible on its face , and (3) is
material to the legal issues in the appeal. 5 C.F.R. § 1201.4 (s). In cases
involving multiple alleged protected disclosures and per sonnel actions, an
appellant establishes Board jurisdiction over her IRA appeal when she makes a
nonfrivolous allegation that at least one alleged personnel action was taken in
2 In the administrative judge’s jurisdictional order, he provided the complete
jurisdictional standard for an IRA appeal such as this, discussing both
section 2302(b)(8) and section 2302 (b)(9). IAF, Tab 3 at 2 -3. However, in the initial
decision, the administrative judge’s explanation of the Board’s jurisdictional limitations
referred only to disclosures protected under section 2302(b)(8), without acknowledging
that activities protected by section 2302(b)(9)(A)(i), (B), (C), or (D) may also fall
within the Board’s purview. ID at 3. On remand, the administrative judge should
ensure that he utilizes the complete jurisdictional standard, concerning both disclosures
protected by section 2302(b)(8) and activities protected by section 2302(b)(9)(A)(i),
(B), (C), or (D) .
4
reprisal for at least one alleged protected disclosure. Baldwin v. Department of
Veterans Affairs , 113 M.S.P.R. 469 , ¶ 6 (2010).
The administrative judge improperly dismissed the appellant’s IRA appeal.
¶7 Alth ough the administrative judge described the initial decision as a
dismissal for lack of jurisdiction, we find that the decision is, in essence, a
dismissal for failure to prosecute. The administrative judge found that the
appellant proved the exhaustion r equirement of 5 U.S.C. § 1214 (a)(3) but failed
to meet the remaining portion of her jurisdictional burden —nonfrivolous
allegations of protected disclosures or activities that were a contributing fa ctor in
the decision to take or fail to take a personnel action. ID at 3 -7. However, in
reaching that conclusion, the administrative judge explained that the appellant
failed to comply with the specific requirements of his order, listed above, and
instea d presented only vague and conclusory assertions, unaccompanied by
affidavit or other evidence. ID at 6 -7; supra ¶ 3. More notably, the
administrative judge relied only on the appellant’s deficient narrative response,
without considering any of the alleg ations described in her correspondence with
OSC. ID at 6 -7.
¶8 The administrative judge was correct to note that the appellant did not
comply with the instructions in his jurisdictional order. Compare IAF, Tab 3 at 7,
with IAF, Tab 11 at 4 -5. The appellant ’s narrative response essentially recites the
jurisdictional standard for this IRA appeal and asserts that she met that standard,
without complying with the administrative judge’s specific instructions or
providing any substantive explanation. IAF, Tab 11 at 4-5. However, that single
failure does not warrant a dismissal for failure to prosecute. Compare Toombs v.
Department of the Army , 69 M.S.P.R. 78 , 81 (1995) (recognizing that an
administrative judge should not dismiss for failure to prosecute based on an
appellant’s failure to comply with a single order), with Heckman v. Department of
the Interior , 106 M.S.P.R. 210 , ¶ 16 (2007) (affirming a dismissal for failure to
prosecute when the appellant failed to comply with multiple orders and warnings
5
over a peri od of more than 2 months). Therefore, we find that it was improper for
the administrative judge to dismiss the appellant’s appeal, without considering
her OSC submissions to determine whether they satisfied her jurisdictional
burden. See Spithaler v. Off ice of Personnel Management , 1 M.S.P.R. 587 , 589
(1980) (recognizing that an initial decision must, inter alia, summarize the
evidence and identify all material issues of fact and law).
On remand, the appellant must comply with the administrative judge’s order and
meet her jurisdictional burden.
¶9 OSC’s January 2017 closeout letter provides the most succinct explanation
of the allegations befor e it. IAF, Tab 7 at 2 -3. The closeout letter described the
appellant’s alleged protected disclosures or activities as follows:
[Y]ou alleged retaliation for disclosing that your supervisors were
violating agency regulations concerning the approval and
documentation of overseas tour extensions, that the Deputy Chief of
Staff did not have the authority to approve exceptions to bypass
selections of candidates entitled to military spouse preference . . .,
and filing complaints with the Office of Inspector G eneral . . . . In
addition, you declined to provide false data on overseas tour
extensions to command leadership and develop a Staff Action
Summary . . . for approval of overseas tour extensions that was
inconsistent with controlling Department of Defense . . . regulations.
Id. at 2. OSC’s closeout described the alleged retaliatory activities as follows:
You asserted that your duties, responsibilities, and working
conditions were changed in retaliation. For example, you were
assigned GS -7 grade level dut ies, you were denied computer access
and attendance at meetings, you experienced issues with your work
station, and several of your emails were deleted. You further alleged
that you were not approved to attend training, your overseas tour was
not extended , you were not selected for a Human Resources . . .
Specialist position, your request for Voluntary Early Retirement
Authority . . . /Voluntary Separation Incentive Payment . . . was
denied, and you were removed from your position.
Id.
¶10 While the aforemen tioned explanation provides some pertinent details, it
does not include others. For example, it does not clearly explain to whom the
6
appellant made her disclosures, who was aware of those disclosures or other
activities that might be protected, and whethe r or to what extent those individuals
may have been involved in the alleged retaliatory personnel actions. Although we
reviewed the documents submitted by the appellant in search of those details, that
correspondence is difficult to follow. For example, the appellant repeatedly
refers to individuals and agency components by abbreviation, such as “G1” and
“HDQA,” without clearly identifying who or what they are or how they may have
contributed to any alleged personnel actions. E.g., IAF, Tab 10 at 6. Moreover,
it appears that the appellant may have intended to pursue only some of the
allegations presented to OSC in the instant appeal. For example, in her OSC
complaint, the appellant appears to have attributed the alleged retaliation to six
agency officials, including her immediate supervisor and the proposing official to
her removal. IAF, Tab 9 at 7, Tab 12 at 12 -14. By contrast, in her petition for
review, the appellant appears to attribute the alleged retaliation to only one
individual, w hose role in any alleged personnel action is less clear. PFR File,
Tab 1 at 4.
¶11 Because the appellant failed to comply with the adminis trative judge’s
order, it remains unclear what allegations the appellant intends to pursue in the
instant IRA appeal and whether those allegations are within the Board’s
jurisdiction. IAF, Tab 3 at 7. On remand, the administrative judge should
provide th e appellant with a second opportunity to comply with his order and
satisfy her jurisdictional burden. The order should warn of the potential
consequences for failing to comply. See generally Morris v. Department of the
Navy , 123 M.S.P.R. 662 , ¶ 11 (2016) (discussing the Board’s regulations
pertaining to a party’s failure to comply with an order or failure to prosecute).
7
ORDER
¶12 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 | CHAPMAN_SHERYL_EVON_DC_1221_17_0376_W_1_REMAND_ORDER_1994258.pdf | 2023-01-18 | null | DC-1221 | NP |
3,804 | https://www.mspb.gov/decisions/nonprecedential/ANDERSON_CHRISTINE_DC_0752_17_0044_I_1_FINAL_ORDER_1994285.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHRISTINE ANDERSON,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DC-0752 -17-0044 -I-1
DATE: January 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bradley R. Marshall , Charleston, South Carolina, for the appellant.
Jason Myers , APO , AE , 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 alleged involuntary 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;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitio ner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review . Except as expressly MODIFIED by
this Final Order to clarify that we have considered the appellant’s discrimination
and retaliation claims to the extent they relate to the voluntariness issue , we
AFFIRM the initial decision.
BACKGROUND
¶2 The appellant , who was employed as a Teacher by the Department of
Defense Dependent Schools , filed an appeal on October 11, 2016, in which she
alleged that her August 31, 2016 retirement was involuntary . Initial Appeal File
(IAF), Tab 1 at 4 . The appellant alleged that the agency subjected her to
discrimination based on age and sex and that she was subjected to reprisal for
prior protected equal employment opportunity (EEO) activity. Id. She included a
copy of a formal complaint she filed with the Equal Employment Opportunity
Commission (EEOC) on Fe bruary 10, 2015. Id. at 8-33. Because it appeared that
the Board may not have jurisd iction over her appeal, the administrative judge
ordered the appellant to submit evidence and argument establishing a
nonfrivolous allegat ion of jurisdiction. IAF, Tab 3 . The appellant did not file a
response. The agency subsequently filed a pleading requesting that the appeal be
dismissed for lack of jurisdiction. IAF, Tab 5.
3
¶3 Thereafter, the administrative judge issued an initial decision, finding that
the appellan t failed to make a nonfrivolous allegation of jurisdiction over her
involuntary re tirement claim. IAF, Tab 6 , Initial Decision (ID) at 3 -5. He also
found that the Board lacks jurisdiction over the appellant’s claim that the
agency’s action was the result of discrimination based on age and sex and
retaliation for EEO activity. ID at 6. H e therefore dismissed the appeal for lack
of jurisdiction without holding th e requested hearing. ID at 1, 6. Because the
administrative judge found that the Board lacks jurisdiction over the appeal, he
did not address the timeliness of the appeal. ID at 1 n.1.
¶4 The appellant has filed a petition for review. Petit ion for Review (PFR)
File, Tab 3 . The agency has filed a response . PFR File, Tab 5 .
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant has failed to make a nonfrivolous allegation that her re tirement was
involuntary .
¶5 Retirements are presumed to be voluntary, and the appellant bears the
burden of proving otherwise. Axsom v. Department of Veterans Affairs ,
110 M.S.P.R. 605 , ¶ 12 (2009). To overcome the presumption that a re tirement
was voluntary, the employee must show that the retirement was the result of the
agency’s misinformation or deception, or that the retirement was coerced by the
agency. Id. To establish involuntariness on the basis of coercion, an employee
must show that the agency effectively imposed the terms of the employee’s
retirement , the employee had no realistic alternative but to re tire, and the
employee’s retirement 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 h er of freedom of choice. Id. If an employee claims that h er
retirement was coerced by the agency creating intolerable working conditions, the
employee must s how a re asonable employee in her position would have found the
working conditions so difficult or unpleasant that they would have felt compelled
4
to re tire. Id. The Board addresses allegations of discrimination and reprisal in
connection with an alleged involunta ry re tirement only insofar as those
allegations relate to the issue of voluntariness. Id.
¶6 Here, the appellant appears to reassert on review that her re tirement was the
result of discrimination and retaliation for her EEO -related activity . PFR File,
Tab 3; IAF, Tab 1 at 8 -33. The administrative judge found that the Board lacks
the authority to review these claims absent an otherwise appealable action. ID
at 6. However, w e have examined these claims insofar as they relate to the
involuntariness of her decision to re tire and conclude that they fail to raise a
nonfrivolous allegation of involuntariness. See Axsom , 110 M.S.P.R. 605 , ¶¶ 12,
17. Specifically, while the appellant’s formal EEO complaint describes her
interactions with school administrators, the last interaction described occurred in
November 2014 . IAF, Tab 1 at 28 -29. However, she did not complete her
retirement application until May 15, 2016 , and she specified that her retirement
was to be effective on August 31, 2016. IAF, Tab 5 at 9 -11. Because the
appellant made the choice to continue to work for at least a year and a half after
the last descr ibed incident, she did not alle ge facts that could show that the
agency engaged in a course of action that made working conditions so difficult or
unpleasant that a reasonable person in her position would have felt compelled to
retire. See Axsom , 110 M.S.P.R. 605, ¶ 12.
¶7 On review, the appellant has submitted sworn declarations that were
submitted as evidence in her discrimination c omplaint filed with the EEOC. PFR
File, Tab 3 at 31 -82. The declarations, as well as the assertions in her petition for
review , expand on the factual allegations she made below that she was forced to
retire due to intolerable work ing conditions . Id. Although these declarations may
raise new arguments by describing additional interactions with school
administrators , parents, and students, these allegations are based on facts that
were known to the appellant while her appeal was pending before the
admin istrative judge. Id. Generally, the Board will not consider an argument
5
raised for the first time in a petition for review absent a showing that it is based
on new and material evidence not previously available despite the party’s due
diligence. Banks v . Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980).
The appellant he re has not attempted to make her required showing, and we thus
have not r elied on her new arguments on review. Nevertheless, even if we were
to consider them, they do not affect the outcome of the case.
¶8 A nonfrivolous allegation is an allegation of fact that, if proven, could
establish a prima facie case that the Board has jurisdiction over the appeal. See
Axsom , 110 M.S.P.R. 605 , ¶ 9. The appellant’s new arguments, even if she were
able to prove the m, would not show that her retirement was involuntary . For
example, the newly submitted declarations allege that the appellant had additional
negative or uncomfortable interactions involving school administrators, parents,
and students in 2015 and 2016 pr ior to her retirement, and s he sets forth her
version of these interactions. PFR File, Tab 3 at 31 -82. Although the appellant
has alleged unpleasant working conditions, she has no t alleged facts to show that
her working conditions were so intolerable suc h that a reasonable person in her
position would have felt compelled to retire or resign. See Miller v. Department
of Defense , 85 M.S.P.R. 310 , ¶ 32 (2000) ( explaining 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). We find, therefore, that the administrative judge correctly
dismissed this appeal for lack of jurisdiction. Because the Board does not have
jurisdiction over this appeal, we have not addressed the issue of whether this
appeal was timely filed.
6
NOTICE OF APPEAL RIGHTS2
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 decis ion. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and 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 descr ibed below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow a ll filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one app lies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is mos t appropriate in any matter.
7
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Cou rt of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any a ttorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropri ate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protecti on Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decis ion before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
8
discrimination based on race, color, religion, sex, national origin, or a disa bling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district court s can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for revi ew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhanc ement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
9
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in s ection
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judici al review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practi ce, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono repr esentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law b y the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
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 | ANDERSON_CHRISTINE_DC_0752_17_0044_I_1_FINAL_ORDER_1994285.pdf | 2023-01-18 | null | DC-0752 | NP |
3,805 | https://www.mspb.gov/decisions/nonprecedential/MAYLE_TIMARAH_AT_0752_16_0728_I_1_FINAL_ORDER_1994329.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TIMARAH MAYLE,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
AT-0752 -16-0728 -I-1
DATE: January 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Timarah Mayle , Gulf Breeze, Florida, pro se.
Donald Vicini , Esquire, 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, whic h
dismissed the appeal for lack of jurisdiction . For the reasons set forth below, the
appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114 (e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 her May 2016
termination from her Postal Support Employee Sales & Services Dist ribution
Associate position. Ini tial Appeal File (IAF), Tab 1. In short, the agency
terminated the appellant during her probationary period for being unable to
satisfactorily meet the requirements of the position. Id. at 10. The agency
moved to dismis s the appeal for lack of jurisdiction. IAF, Tab 7. On
September 13, 2016, t he administrative judge issued an initial decision
dismissing the a ppeal for lack of jurisdiction. IAF, Tab 12, Initial Decision (ID)
at 4.
¶3 The appellant filed the instant petit ion for review on April 6, 2017. Petition
for Review (PFR) File, Tab 1. The agency filed a motion to dismiss the petition
for review as untimely . PFR File , Tab 4. The appellant has replied to the
agency’ s motion. PFR File , Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 The Board’s regulations provide that a petition for review must be filed
within 35 days after the issuance of the initial decision or, if the appellant shows
that the initial decision was received more than 5 days after the day of issua nce,
within 30 days after the date she received the initial decision. 5 C.F.R.
§ 1201.114 (e). Here, the administrative judge informed the appellant that the
initial decision would beco me the Board’s final decision on October 18, 2016,
unless either party filed a petition for review by that date. ID at 5. She further
informed the appellant that, if she received the initial decision more than 5 days
after the date of issuance, she could file a petition for review within 30 days after
the date of receipt. Id. In addition, she notified the appellant that the 30 -day
period would begin to run upon either her or her representative’s receipt of the
initial decision, whichever occurred first. Id.
3
¶5 The Board’s certificate of service reflects that, on September 13, 2016, the
initial decision was sent by email to the appell ant, who had registered as an
e-filer. ID at 10; see 5 C.F.R. § 1201.14 (e)(1) (st ating that registration as an
e-filer constitutes consent to accept electronic service of pleadings filed by other
registered e -filers and documents issued by the Board). Thus, we find t hat the
30-day period began to run on September 13, 2016, when the appellant received
the initial decision. See 5 C.F.R. § 1201.14 (m)(2) (explaining that Board
documents served electroni cally on registered e -filers are deemed received on the
date of electronic submission). Based on the foregoing, we further find that the
deadline for filing a petition for review was October 18, 201 6. See 5 C.F.R.
§ 1201.1 14(e).
¶6 The appellant filed a petition for review on April 6, 2017, nearly 6 months
past the filing dead line. PFR File, Tab 1. In an acknowledgement letter, 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 ca use. PFR File, Tab 2. The letter
also stated that the motion must be sent by April 21, 2017. Id. at 2. The
appellant did not timely file any argument or evidence concerning the timeliness
of her petition for review. On April 27, 2017, the agency urged for dismissal of
the petitio n for review as untimely filed. PFR File, Tab 4. On that same day, the
appellant filed a response to the agency’s motion. PFR File, Tab 5. She argues
that her untimely filing of her petition for review was due to various family and
financial problems. Id.
¶7 The Board will excuse the late filing of a petition for review on a showing
of good cause for t he delay. 5 C.F.R. § 1201.114 (g). To establish good ca use
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
4
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 misfortunate 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). Moreove r, an allegation of financial and family
difficulties does not constitute good cause for waiving the deadline for filing a
petition for review. Robey v. U.S. Postal Service , 105 M.S.P.R. 539 , ¶ 16, aff’d ,
253 F. App’x 993 (Fed. Cir. 2007) ; Garcia v. Office of Personnel Management ,
85 M.S.P.R. 576 , ¶ 4 , aff’d , 251 F.3d 170 (Fed. Cir. 2000) (Table) .
¶8 In her response to the agency’s motion to dismiss , the appellant
acknowledges that the dea dline to file her petition for review was October 18,
2016 and that her petition is untimely. PFR File, Tab 5 at 4. The appellant
asserts that her petition for review is untimely due to hardships and stress from
her termination from the agency. Id. She details that she has been under
significant stress and distracted since her termination due to an inability to pay
her mo rtgage and utility bills and having suffered a strained relationship with her
children. Id. at 4-9.
¶9 However, she has not explained how these events contributed to the
untimeliness of her petition for review. See Moorman , 60 M.S.P.R. at 63.
Further, t he appellant’s nearly 6 -month delay in filing her petition for review is
significant, not withstanding her pro se status. E.g., Dow v. Department of
Homeland Security , 109 M.S.P.R. 633 , ¶¶ 3, 8 (2008) (finding a delay of more
than 1 month to be sig nificant , notwithstanding the appellant’ s pro se status) .
Therefore , under these circumstances, we find the appellant has not shown good
cause for the delay in filing her petition.
5
¶10 Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the dismissal of the underlying appeal.
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 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
2 Since the issuance of the initial decisi on in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
6
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is 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
7
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discri mination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourt s.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC b y regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
8
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 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
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | MAYLE_TIMARAH_AT_0752_16_0728_I_1_FINAL_ORDER_1994329.pdf | 2023-01-18 | null | AT-0752 | NP |
3,806 | https://www.mspb.gov/decisions/nonprecedential/KIM_TAE_K_DC_3330_16_0104_I_1_FINAL_ORDER_1994337.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TAE K. KIM,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DC-3330 -16-0104 -I-1
DATE: January 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tae K. Kim , Gettysburg, Pennsylvania, pro se.
Kristine T. Burgos , 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
denied his request for corrective action under the Veterans Employment
Opportunities Act (VEOA) of 1998 . 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114 (e), (g).
BACKGROUND
¶2 In August 2015, the appellant applied , but was not selected , for the position
of Transportation Operations Specialist, GS-2150 -11, with the agency’s
Department of Defense Educati on Activity under Vacancy Announcement No. 15-
082-KO-CMC -1479692 . Initial Appeal File (IAF), Tab 1 at 7-29. He filed a
timely complaint with the Department of Labor (DOL) alleging that the agency
violated his veterans’ preference rights in failing to sel ect him for the position.
Id. at 30. B y notice dated October 23, 2015, DOL advised him that it had
completed its investigation into his complaint without finding any veterans’
preference violation . Id. at 30-31. The appellant then timely filed this VEOA
appeal with the Board and requested a hearing . Id. at 1-6. In an initial decision
dated August 4, 2016, the administrative judge found that the Board had
jurisdiction over the appellant’s VEOA appeal but denied his request for
corrective action on the merits without holding his requested hearing. IAF,
Tab 15, Initial Decision (ID) . The initial decision noted that it would become
final on September 8, 2016, unless a petition for review was filed by that date.
ID at 9.
¶3 On February 1, 2017, the ap pellant filed two petitions for review2 of the
initial decision through the Board’s e -Appeal filing system , indicating that he had
not received the initial decision until midnight on January 30, 2017 . Petition for
Review (PFR) File, Tabs 1 -2. In an ackno wledgment letter dated February 2,
2017 , the Clerk of the Board informed the appellant that his petition for review
was untimely filed and that an untimely petition for review must be accompanied
by a motion to eit her accept the filing as timely and/or wai ve the time limit for
2 Both of these petitions were filed only minutes apart from each other , and we have
treated them as one filing for purposes of this decision.
3
good cause. PFR File, Tab 3 at 1 (citing 5 C.F.R. § 1201.114 (g)). The letter
instructed the appellant that, if he filed the aforementioned motion, he must
include a statement signed under penalty of perjury or an affidavit showing that
the petition was either timely filed or that good cause existed for his late filing .
Id. at 1-2. The Clerk provided the appellant a form titled “Motion to Accept
Filin g as Timely or to Waive Time Limit ” and allowed him until February 17,
2017 , to submit his motion and signed statement . Id. at 2, 7-8. The appellant did
not respond to the Clerk’s letter.
ANALYSIS
¶4 A petition for review generally must be filed within 35 d ays after the date
of the i ssuance of the initial decision or, if the party filing the petition shows that
he received the initial decision more than 5 days after it was issued, within
30 days after he 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). Because the
administrative judge issued the initial decision in this case on August 4, 2016,
any petition for review of the initial decision must have been filed by
September 8, 2016 . ID at 1, 9; 5 C.F.R. § 1201.114 (e). The appellant, however,
did not submit his petition for review until February 2, 2017 —nearly 5 months
after the deadline. PFR File, Tabs 1 -2. As noted above, the appellant asserts that
he did not receive the initial decision until midnight on January 30, 2017. PFR
File, Tab 1 at 3, Tab 2 at 3. However, because he is a registered e -filer, IAF,
Tab 4, he is deemed to have received the initial decision on the date of its
electronic submission, August 4, 2016 . Palermo , 120 M.S.P.R. 694 , ¶ 3; 5 C.F.R.
§ 1201.14 (m)(2); ID at 1 , 14-15. Therefore, the a ppellant has not shown that he
received the initial decision more than 5 days after its issuance or that he t imely
filed his petition for review within 30 days of his delayed receipt of the initial
decision .
4
¶5 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 ; 5 C.F.R. §§ 1201.113 (d), 1201.114(f) . 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 particular circumstances of the case. Palermo , 120 M.S.P.R. 694 , ¶ 4 .
To determine whether a party has shown good cause, the Board will consider the
length of the delay, the reasonableness of his excuse and the party’s showing of
due diligence, whether he is proceeding pro s e, and whether he has presented
evidence of the existence of circumstances beyond h is control that affected his
ability to comply with the time limits or of unavoidable casualty or misfortune
that similarly shows a causal relationship to his inability to t imely file his
petition. Id.
¶6 Here , the appellant’s 5-month delay in filing his petition for review is
significant , notwithstanding his pro se status . E.g., Dow v. Department of
Homeland Security , 109 M.S.P.R. 633 , ¶¶ 3, 8 (2008) (finding a delay of more
than 1 month to be significant , notwithstanding the appellant’ s pro se status).
Furthermore, the appella nt did not respond to the Clerk’ s acknowledgment letter
or provide any explanation for his filing delay , despite being apprised of the
requirements and of the consequences for failing to respond. See Bell v.
Department of Homelan d Security , 112 M.S.P.R. 33 , ¶¶ 8, 10 (2009) (dismissing
a petition for review as untimely filed because the pro se appellant failed t o
respond to the order on timeliness or otherwise demonstrate good cause for the
delay). Therefore, we c onclude that the appellant has failed to demonstrate good
cause for the untimeliness of his petition for review.
¶7 In light of the foregoing , we dismiss the appellant’s 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 decis ion of the Board regarding th e appellant’s VEOA appeal
5
challenging his nonselection for the Transportation Operations Specialist position
under Vacancy Announcement No. 15-082-KO-CMC -1479692 .
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute,
the nature of your claims determines the time limit for seeking such review and the
appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the
following summary of available appeal rights, the Merit Systems Protection Board
does not provide legal advice on which option is most appropriate for your situation and
the rights described below do not 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).
If you submit a petition for review to the U.S. Court of Appeals for the 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
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
Additional information about the U.S. Court of Appeals for the Federal Circuit 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 this case, and your representative receives this decision
before you do, then you must file with the district court no later than 30 calenda r days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and to
waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed 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 .
7
5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of
Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C.
§ 7702 (b)(1). If you have a representative in this case, and your representative receives
this decision before you do, then you must file with the EEOC no later than
30 calendar days after your representative receives this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the addr ess
of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or by a
method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection Enhancement
Act of 2012 . This option applies to yo u only if you have raised claims of reprisal for
whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities
listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition
for review “raises no challenge to the Board’s disposition of allegations of a prohibited
personnel practice described in section 2302(b) other than practices described in section
2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for
judicial review either with the U.S. Court of Appeals for the Federal Circuit or any
court of appeals of competent jurisdiction.4 The court of appeals must receive your
4 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
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 cou rt at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal Circuit is
available at the court’s website, www.cafc.us courts.gov. Of particular relevance is the
court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appea l to the U.S.
Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation for
Merit Systems Protection Board appellants before the Federal Circuit. The Board
neither endorses the services provided by any attorney nor warrants that any attorney
will accept representation in a given case.
Contact information for the courts of appeals can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWeb sites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | KIM_TAE_K_DC_3330_16_0104_I_1_FINAL_ORDER_1994337.pdf | 2023-01-18 | null | DC-3330 | NP |
3,807 | https://www.mspb.gov/decisions/nonprecedential/FOSTER_DEBRA_A_CH_531D_16_0131_I_1_FINAL_ORDER_1993536.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DEBRA A. FOSTER,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.
DOCKET NUMBER
CH-531D -16-0131 -I-1
DATE: January 17, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Debra A. Foster , Chicago, Illinois, pro se.
Amy Baines , James Hail , Esquire, and Linda M. Januszyk , 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 agency’s decision denying her within -grade increase. Generally, we
grant petitions such as this one only in the following circumstances: the initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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 availabl e 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).
¶2 On review, the appellant argues that the administrative judge erred by
limiting the issues on appeal, the agency evaluated her performance too harshly,
and the administrative judge erred by findi ng that the appellant failed to prove her
affirmative defense of disability discrimination. We have considered the
appellant’s arguments and find them unpersuasive.
¶3 In addition, the appellant alleges that the administrative judge failed to
apply the eff iciency of the service standard set forth in 5 U.S.C. § 7513 (a), and
the administrative judge failed to consider mitigating factors that would
purportedly warrant a lesser penalty. It is well esta blished that the efficiency of
the service standard does not apply in performance -based actions . Cf. Jackson v.
Department of Veterans Affairs , 97 M.S.P.R. 13 , ¶ 13 (2004) (stating that
agencies a re not required to show that actions taken for unacceptable performance
promote the efficiency of the service). Moreover, the Board lacks mitigation
authority in appeals invol ving the denial of a within -grade increase. Lisiecki v.
Federal Home Loan Bank Board , 23 M.S.P.R. 633 , 646 (1984), aff’d , 769 F.2d
1558 (Fed. Cir. 1985).
3
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failur e to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have ques tions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must fi le a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
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.
Washing ton, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probon o for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a g iven case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in p art, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 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 resp ective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employm ent
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operation s within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Em ployment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whi stleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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 l ink below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | FOSTER_DEBRA_A_CH_531D_16_0131_I_1_FINAL_ORDER_1993536.pdf | 2023-01-17 | null | CH-531D | NP |
3,808 | https://www.mspb.gov/decisions/nonprecedential/ARNOLD_KEITH_L_CB_1216_16_0017_T_1_FINAL_ORDER_1993581.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SPECIAL COUNSEL,
Petitioner,
v.
KEITH L. ARNOLD,
Respondent.
DOCKET NUMBER
CB-1216 -16-0017 -T-1
DATE: January 17, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carolyn S. Martorana , Esquire, Washington, D.C., for the petitioner.
Keith L. Arnold , Auburn, Washington, pro se.
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 respondent has filed a petition for review of the initial decision, which
found that he had violated the Hatch Act by running for a partisan political office
in two election cycles and ordered his removal from Federal service . 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
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
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 law judge’s
rulings during either the course of the appeal or the initial decision were not
consistent with required procedures or involved an abuse of discretion, and the
resulting error aff ected the outcome of the case; or new and material evidence or
legal argument is available that, despite the respondent’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 respondent 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).
BACKGROUND
¶2 The respondent has served as an employee of the U.S. Department of
Commerce’s National Oceanic and Atmospheric Administration since
March 2010. Complaint F ile (CF), Tab 6 at 1, Tab 1 at 5 . The Office of Special
Counsel (OSC) filed a Complaint for Disciplinary Action (Violation of the Hatch
Act) against the respondent, charging him with a single count of being a
candidate for partisan political office in violation of 5 U.S.C. § 7323 (a)(3) and
5 C.F.R. § 734.304 for the 2014 primary election for the office of
U.S. Representative for the 8 th Congressional District of the St ate of Washington
(Washington’s 8th Congressional District) . CF, Tab 1. OSC subsequently
amended its complaint to add a second count alleging that the respondent also ran
in the 2016 primary election for the same office. CF, Tab 9. The respondent did
not dispute that he ran in the named primary elections , but instead argued that the
elections were nonpartisan because Washington’s “Top 2” primary system meets
3
the pertinent regulatory definition of a nonpartisan election. CF, Tab 12 at 3-5.
OSC filed a motion for summary adjudication, arguing that the respondent had
admitted to all material facts and thus it was entitled to judgme nt as a matter of
law. CF, Tab 22. The respondent also filed a motion for summary judgment .2
Petition for Review (PFR) File , Tab 7. S ubsequently , the administrative law
judge issued an order denying the respondent’s motion in its entirety and granting
OSC’s motion in part, finding OSC was entitled to judgment as a matter of law on
both counts of its complaint, but finding a hearing necessary to determine the
proper penalty to impose on the respondent . CF, Tab 25 at 8 -9.
¶3 After holding the hearing, the administrative law judge issued an initial
decision finding that OSC proved its case and that removal was the appropriate
penalty for the violation . CF, Tab 35, Initial Decision (ID). In his timely filed
petition for review, the respondent reiterates his argument that his candidacy was
allowed under the exceptions enumerated in 5 C.F.R. § 734.207 . PFR File, Tab 1.
OSC responds in opposition to the respondent’s petition for review. PFR File,
Tab 3.
¶4 After the close of the record on review, OSC filed two motio ns to reopen
the record to submit new and material evidence showing that the respondent ran
two more times as a candidate for partisan political office in violation of 5 U.S.C.
§ 7323 (a)(3), in the 2018 and 2020 primary election for Washington ’s 8th
Congressional District. PFR File, Tab 8 at 5 -6, 9-11, 26 -29; Tab 10 at 5 -7, 11 -13.
OSC argued that the new evidence not only supports the penalty of removal, but
also supports an enhanced penalty to in clude a $1,000.00 fine and debarment
from Federal employment for 5 years. PFR File, Tab 8 at 6 , Tab 10 at 7. The
Acting Clerk of the Board granted both motions to submit a new pleading and
afforded the respondent 15 days, in each instance, to respond to OSC’s new
2 A copy of the respondent’s motion for summary judgment was missing from the
record below but was supplemented on review.
4
evidence. PFR File, Tabs 9, 11 . The respondent did not respond in either
instance.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative law judge considered the respondent’s arguments and
correctly determined that he violated the Hatch Act.
¶5 The respondent claims that the administrative law judge and OSC
“knowingly, willfully, and fraudulently” left out the exceptions contained within
5 C.F.R. § 734.304 , and that under those exceptions he was allowed to run in the
primary election for Washington’s 8th Congressional District . PFR File, Tab 1.
5 C.F.R. § 734.304 prohibits a n employee from running for the nomination, or as
a candidate for election, to a partisan political office, unless the employee falls
into one of the following t wo exception s, as enumerated in 5 C.F.R. § 734.207 :
either if an employee (a) runs as an independent candidate in a partisan election
covered by 5 C.F.R. part 73 3; or (b) runs as a candi date in a nonpartisan election.
We find that that t he first exception is inapplicable here because Washington’s
8th Congressional District is not included in any of the municipalities covered by
5 C.F.R. part 733 .3 5 C.F.R. § 733.107 (c). Theref ore, the only issue in dispute is
whether the respondent ran in a nonpartisan political election .
¶6 We reject the respondent’s argument and agree with the administrative law
judge’s finding that the primary elections for Washington’s 8th Congressional
Distri ct are partisan, and thus do not fall under the second exception enumerated
in 5 C.F.R. § 734.207 . ID at 13 -14. A pa rtisan political office is defined as “ any
office for which any candidate is nominated or elected as representing a party any
of whose candidates for Presidential elector received votes in the last preceding
election at which Presidential electors were selected, but does not include any
office or p osition wi thin a poli tical party or affiliated organization.” 5 C.F.R
3 The respondent does not argue that Washington’s 8th Congressional District is within
one of the d esignated municipalities covered by 5 C.F.R. § 733.107 . PFR File, Tab 1.
5
§ 734.101 ; see also 5 U.S.C. § 7322 (2). There is no evidence in the record , or
any argument made by the respondent , that undermines the administrative law
judge’s finding that the primary elections for Washington’s 8th Congressional
District included candidates from political parties whose candidates for
Presidential elector received votes in the la st preceding election. ID at 12 .
Further, the Board has confirmed that the office of United States Representative
is a partisan political office . Special Counsel v. Lewis , 121 M.S.P.R. 109 , ¶ 15
(finding that a respondent’s candidacy for the U.S. House of Representative was a
violation of the Hatch Act), aff’d, 594 F. App’ x 974 (Fed. Cir. 2014) ; see also
Merle v. U nited States , 351 F.3d 92 , 96 (3d Cir. 2003) ( “By the plain terms of the
Hatch Act, the position of United States R epresentative is a partisan political
office .”). Therefore, because the office of U.S. Representative is a partisan
political office, we agree with the administrative law judge that the respondent
violated the Hatch Act when he ran in in the 2014 and 2016 primary elections for
Washington’s 8th Congressional District . ID at 14-15.
Removal is an appropriate penalty .
¶7 The administrative judge correctly applied the relevant Douglas factors and
found that removal was the appropriate penalty to impose on the respondent . ID
at 16 -21; Lewis , 121 M.S.P.R. 109 , ¶ 31 (concluding that the Board should apply
the Douglas factors in independently det ermining the proper penalty from the
range of penalties permissible under 5 U.S.C. § 7326 ); Douglas v. Veterans
Administration , 5 M.S.P.R. 280 , 305 -06 (1 981) (providing a nonexhaustive list of
factors that may be relevant to a penalty determination, including, among other
factors, whether the misconduct is in tentional, repeated, and shows a poor
potential for rehabilitation ). The respondent does not dispute the administrative
law judge’s application of the Douglas factors, and u pon review of the record, it
is apparent that the administrative law judge reviewed all of the evidence and
arguments by both parties and came to r easoned, logical conclusions. See ID;
PFR File, Tab 1. Thus we see no reason to disturb his findings. Crosby v. U.S.
6
Postal Service , 74 M.S.P.R. 98, 106 (1997) (declining to disturb the
administrative judge’s findings where she considered the evidence as a whole,
drew appropriate inferences, and made reasoned c onclusions); Broughton v.
Department of Health and Human Services , 33 M.S.P.R. 357 , 359 (1987) (finding
no reason to disturb the adm inistrative judge’s findings when the initial decision
reflected that the administrative judge considered the evidence as a whole, drew
appropriate inferences, and made reasoned conclusions).
¶8 As for OSC’s request that the Board enhance the penalty impose d against
the respondent because the respondent ran again for partisan political office in
2018 and 2020, we deny the request. PFR File, Tab 8 at 6, Tab 10 at 6 -7. The
enhanced penalty requested by OSC is based on the statutory authority provided
for in the National Defense Authorization Act for Fiscal Year 2018, Pub. L.
No. 115-91, 131 Stat 1283, 1626 (NDAA for 2018) . Section 1097(k) (2) of that
Act, codified at 5 U.S.C. § 7326 , authorizes those penalties for violations of
5 U.S.C. § 7323 “occurring after the date of enactment of this Act. ” The NDAA
for 2018 became effective on December 12, 2017 . Thus, by the plain language of
the statute, the responden t’s actions in 2014 and 2016 are not subject to the
NDAA for 2018 and the enhanced penalties provided for in that statute cannot be
imposed for the respondent ’s conduct. Hooker v. Depart ment of Veterans Affairs ,
120 M.S.P.R. 629, ¶ 12 (2014) (quoting Landgraf v. USI Film Products , 511 U.S.
244, 257 (1994) (“A statement that a statute will become effective on a certain
date does not even arguably suggest that it has any applic ation to conduct that
occurred at an earlier date .”)).
¶9 Furthermore, we find that enhancing the penalty imposed on the respondent
for violations that occurred after the effective date of the NDAA for 2018 and
after the issuance of the initial decision would be inconsistent with the statutory
requirements. Purs uant to 5 U.S.C. § 1215 (a)(1), if OSC determines that
disciplinary action s hould be taken against an employee for, among other things,
viola ting the Hatch Act, it “shall prepare a written complaint against the
7
employee containing the Special Counsel’s determination, together with a
statement of supporting facts, and present the complaint and statement to the
employee and the Board . . . .” Fu rther, once a complaint is filed, certain
procedural protectio ns are afforded to the respondent pursuant to 5 U.S.C.
§ 1215 (a)(2), includ ing a reasonable time to answer the complaint orally and in
writing, to have a hearing before the Board or an administrative law judge
designated by the Board, and to have a written decision on the merits . OSC filed
a complaint with th e Board against the respondent for violations of 5 U.S.C.
§ 7323 (a)(3) and 5 C.F.R. § 734.304 that occurred in 2014 and 2016 , and the
respondent was give n an opportunity to respond to the charges, have a hear ing in
front of an administrative law judge, and have a written decision on the merits .
5 U.S.C. § 1215 (a)(2); CF, Tab 9 ; ID. At no point has OSC filed a complaint
against the respondent for viol ations of 5 U.S.C. § 7323 (a)(3) related to his
candidacy in 2018 or 2020 and thus, the respondent has not been afforded the
procedural protections required by 5 U.S.C. § 1215 (a)(2). Accordingly, because
OSC did not c omply with the requirements of 5 U.S.C. § 1215 , we deny its
request to enhance the respondent’s penalty to include an additional fine and
debarment as authorized by the NDAA for 2018 .4
ORDER
The Board ORDERS the National Oceanic and Atmospheric Administration
to REMOVE the respondent from his position of employment. The Board also
ORDE RS OSC to notify the Board within 30 days of the date of this Final Order
whether the respondent has been removed as ordered. This is the final decision
of the Merit Systems Protection Board in this appeal. 5 C.F.R. § 1201.113 (b).
4 OSC may file a new complaint with the Board if it wishes to seek disciplinary action
against the appellant for his 2018 and 2020 candidacies. Such a complaint must
comport with the statutory requirements and must be filed consistent with the Board’s
regulations. 5 U.S.C. § 1215 (a)-(b); 5 C.F.R. §§ 1201.122 , 1201 .123.
8
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 f orum for more information.
(1) Judicial review in general . As a general rule, an appellant6 seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, yo u must submit your petition to the court at the
following address:
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6 In this case, the respondent has the same appeal rights as an “appellant.”
9
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availab le at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securin g pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before th e Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that 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 dispos ition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 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
10
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for rev iew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhan cement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
11
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 competen t jurisdiction.7 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB de cisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ARNOLD_KEITH_L_CB_1216_16_0017_T_1_FINAL_ORDER_1993581.pdf | 2023-01-17 | null | CB-1216 | NP |
3,809 | https://www.mspb.gov/decisions/nonprecedential/ARNOLD_MARY_L_CH_0831_17_0331_I_1_FINAL_ORDER_1993622.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARY L. ARNOLD,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
CH-0831 -17-0331 -I-1
DATE: January 17, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mary L. Arnold , Chicago, Illinois, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her appeal seeking retirement benefits. On
petition for review, the appellant appears to argue that she is entitled to benefits.
Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required 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).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error aff ected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.2 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS3
You may obtain r eview of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situa tion and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your clai ms and carefully follow all
2 The administrative judge properly dismissed the appeal because OPM completely
rescinded its decision, which deprived the Board of jurisdiction. See Redmond v. Office
of Personnel Management , 106 M.S.P.R. 544 , ¶ 4 (2007). If the appellant is dissatisfied
with OPM’s new final decision, she may file a new appeal with the Bo ard.
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.
filing time limits 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 rul e, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is t he court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Fe deral Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any att orney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that 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 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:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, 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 W histleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 th e date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, p ermanently allows appellants to file petitions for judicial review of
MSPB decisions in 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 Ci rcuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www. cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for a n appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board n either endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 | ARNOLD_MARY_L_CH_0831_17_0331_I_1_FINAL_ORDER_1993622.pdf | 2023-01-17 | null | CH-0831 | NP |
3,810 | https://www.mspb.gov/decisions/nonprecedential/FOSTER_DEBRA_A_CH_1221_16_0563_W_1_FINAL_ORDER_1993771.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DEBRA A. FOSTER,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.
DOCKET NUMBER
CH-1221 -16-0563 -W-1
DATE: January 17, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Debra A. Foster , Chicago, Illinois, pro se.
Amy Baines , Esquire, and James Hail , 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
dismissed for lack of jurisdiction her 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 determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
circumstances: the initial 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).
¶2 The agency took a performance -based removal action against the appellant,
a GS -0105 -11 Social Insurance Specialist Claims Authorizer, effectiv e January 8,
2016. Initial Appeal File (IAF), Tab 1 at 14. It appears that the Office of
Personnel Management approved her application for disability retirement at some
point after her removal. IAF, Tab 13 at 79. The appellant filed a complaint with
the Office of Special Counsel (OSC) and, after receiving a closure letter, filed an
IRA appeal in which she alleged that the agency took a number of personnel
actions against her in reprisal for her alleged protected disclosures. IAF, Tab 1
at 10-12, Tab 9 at 11 -26.
¶3 The administrative judge issued proper notice affording the appellant
accurate and complete notice of her burden of establishing jurisdiction over her
IRA appeal. IAF, Tab 3. After considering the parties’ responses, the
administrative judge issued an initial decision that dismissed the appeal for lack
of jurisdiction upon finding that the appellant failed to make a nonfrivolous
allegation that any of her disclosures were protected. The appellant petitions for
review of the initial decision. P etition for Review (PFR) File, Tabs 1, 5. The
3
agency responds in opposition to the petition for review , and the appellant replies
to the agency’s response. PFR File , Tabs 6 -7.
¶4 The Board has jurisdiction over an IRA appeal if the appellant exhausts her
administrative remedies before OSC and makes nonfrivolous allegations that
(1) she made a disclosure that was protected under 5 U.S.C. § 2302 (b)(8) or
engaged in protected activity described in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C),
or (D) , and (2) the disclosure or protected activity was a contributing factor in the
agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302 (a)(2)(A) . Linder v. Department of Justice , 122 M.S.P.R. 14, ¶ 6 (2014) .
Here, the appellant did not clearly explain which issues she raised to OSC. She
submitted a partial copy of her original OSC complaint on Form 11 (“Complaint
of Possible Prohibited Personnel Practice or Other Prohibited Activity”) and
copies of correspondence from OSC concerning her complaint. IAF, Tab 1
at 7-13, Tab 9 at 11 -26. The initial decision accurately characterizes those
disclosures (described in more detail below) that the appellant exhausted before
OSC. IAF, Tab 16, Initia l Decision (ID) at 4 -5. The appellant appears to contend
on review that the administrative judge incorrectly excluded other disclosures and
incorrectly refused to consider disclosures raised only in the appellant’s OSC
Form 12 (“Disclosure of Information ”). PFR File, Tab 1 at 6, 8. However, the
appellant has identified nothing in the record below to show she raised any
disclosures to OSC that the administrative judge neglected to consider.
Moreover, the Board has found that making disclosures to OSC’s D isclosure Unit
via Form 12 does not satisfy the exhaustion requirement under 5 U.S.C.
§ 1214 (a)(3) . Mason v. Department of Homeland Security , 116 M.S.P.R. 135 ,
¶ 16 (2011) (finding that, unlike OSC’s Complaints Examining Unit, which
investigates complaints filed on OSC Form 11, the Disclosure Unit does not
review allegations of prohibited personnel practice s).
¶5 Having satisfied the exhaustion requirement as to some of her alleged
protected disclosures, the next step in the appellant’s jurisdictional burden is to
4
make a nonfrivolous allegation that she made a disclosure that was p rotected
under 5 U.S.C. § 2302 (b)(8) or engaged in protected activity described in
5 U.S.C. § 2302 (b)(9)(A)(i ), (B), (C), or (D). Prior to the enactment of the
Whistleblower Protection Enhancement Act of 2012 (WPEA), 5 U.S.C.
§ 2302 (b)(9) made it a prohibited personnel practice to retaliate against an
employee or applicant for employment because of the exercise of any appeal,
complaint, or grievance right granted by any law , rule, or regulation. Reprisal in
violation of 5 U.S.C. § 2302 (b)(9) was seen as reprisal based on exercising a right
to complain. Linder , 122 M.S.P.R. 14 , ¶ 7. After the enactment of the WPEA,
the B oard has jurisdiction to hear appeals of violations of 5 U.S.C.
§ 2302 (b)(9)(A)(i), i.e., allegations of reprisal for exercising a right to complain,
when the substance of that complaint seeks redr ess for a violation of 5 U.S.C.
§ 2302 (b)(8). Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365, ¶ 7
(2013). However, the WPEA did not extend the Board’s jurisdiction in IRA
appeals to claims arising under 5 U.S.C. § 2302 (b)(9)(A)(ii), which covers
retaliation for exercising any appeal, complaint, or grievance right that does not
seek to remedy a violation of section 2302 (b)(8). See Young v. Merit Systems
Protection Board , 961 F.3d 1323 , 1329 (Fed. Cir. 2020) (explaining that claims
of reprisal for activity protected under section 2302(b)(9)(A)(ii) are remediable
through different mechanisms, and not by an IRA appeal to the Board) .
¶6 Here, the administrative judge correctly identified seven alleged disclosures
at issue: (1) a 2011 equal employment opportunity (EEO) complaint followed by
an action in U.S. District Court; (2) a 2013 union grievance; (3) letters to Senator
Durbin and Repr esentative Rush in 2013; (4) an unfair labor practice (ULP)
charge in 2015; (5) a 2015 EEO complaint; (6) a Board appeal in 2015; and (7) a
March 2016 Inspector General (IG) complaint. ID at 4 -5. The IG complaint
post-dates the appellant’s removal and th erefore cannot be the basis of a
retaliation claim. Mason , 116 M.S.P.R. 135 , ¶ 27. The 2011 EEO complaint and
the letters to Congre ss are not in the record, but the appellant nowhere asserts that
5
the subject matter of these alleged disclosures concerned whistleblow er reprisal.
Instead, the appellant’s focus throughout her appeal and on review is on her
assertions of personally having been subjected to discrimination and unequal
treatment, not on (b)(9) complaints of retaliation for making protected
disclosures. PFR File, Tab 1 at 11 -13; Spruill v. Merit Systems Protection Board ,
978 F.2d 679 , 690 -92 (Fed. Cir. 1992) (recognizing that, in enacting
sections 2302(b)(8) and 230 2(b)(9), Congress purposefully distinguished betwee n
“reprisal based on disclosure of information and reprisal based upon exercising a
right to complain”; the former is covered in section 2302(b)(8), the latter in
section 2302(b)(9)(A)) .
¶7 There is sufficient information in the record concerning the remainin g four
alleged protected disclosures to conclude that none of them involved allegations
of reprisal for whistleblowing. The grievance concerned the appellant’s claims
about how her supervisors and mentors expected her to do her work. IAF, Tab 5
at 59 -62. The Federal Labor Relations Authority’s decision not to issue a ULP
complaint followed the appellant’s ULP charge that the union wrongly refused to
take a grievance to arbitration. Id. at 76. The 2015 EEO complaint concern ed
allegations of harassment, inadequate training, poor performance evaluations and
the denial of a within -grade increase. Id. at 94, 97, 100, 105. The Board appeal
also concerned the denial of a within -grade increase. Although the WPEA
expanded the Board’s jurisdiction to include c ertain (b)(9) claims, the
administrative judge correctly found that the appellant did not make a
nonfrivolous allegation that any of her disclosures concerned subject matter
covered in (b)(8). Therefore, we find the administrative judge correctly
dismisse d the IRA appeal for lack of jurisdiction.2
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.
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 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
filing time limits 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 conta ct that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 decisi on in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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
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.
(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 with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
8
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
9
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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, 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 | FOSTER_DEBRA_A_CH_1221_16_0563_W_1_FINAL_ORDER_1993771.pdf | 2023-01-17 | null | CH-1221 | NP |
3,811 | https://www.mspb.gov/decisions/nonprecedential/HARRIS_JUDALON_J_CH_3443_16_0593_I_1_FINAL_ORDER_1993804.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JUDALON J. HARRIS,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
CH-3443 -16-0593 -I-1
DATE: January 17, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Judalon J. Harris , Anderson, Indiana, pro se.
Eric Y. Hart , 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 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 fa ct; 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 decision we re not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not avail able when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that th e 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 an appeal in which she challenged a 14 -day suspension
and her placement in an absence without leave (AWOL) status for 11 hours.
After affording the appellant notice of the burdens and elements of proof, the
administrative judge issued an initial decision that dismissed the appeal for lack
of jurisdiction. The appellant petitions for review.
¶3 As the administrative judge correctly found, the Board does not have
jurisdiction t o hear appeals concerning suspensions of fewer than 15 days. Initial
Appeal File, Tab 5, Initial Decision (ID) at 3; see Marks v. U.S. Postal Service ,
78 M.S.P.R. 451 , 454 (1998) . Further, the Board does not have jurisdiction over
an employee’s placement in an AWOL status. ID at 4; see Maki v. U.S. Postal
Service , 41 M.S.P.R. 449 , 453 (1989) . Therefore, the administrative judge
correctly dismissed the appeal for lack of jurisdiction.
¶4 In her petition for review, the appellant requests that the Board make an
exception to the jurisdictional standard in her case. The Board only has
jurisdiction over those matters in which it has been given jurisdiction by statute
or regulation. Maddox v. Merit Systems Prote ction Board , 759 F.2d 9 , 10 (Fed.
Cir. 1985). It does not have the discretion to make an exception for the appellant.
To the extent that the appe llant contends that the agency’s action constituted
3
reprisal for protected whistleblowing, she did not raise this argument below.
Moreover, the Board would only have jurisdiction over such a claim if she were
able to prove that she exhausted her administr ative remedies by first filing a
complaint with the Office of Special Counsel. Loyd v. Department of the
Treasury , 69 M.S.P.R. 684 , 687 (1996) . There is no evidence that she has done
so. Thus, even if the Board were to consider her untimely raised whistleblowing
claim, it would lack jurisdiction over that matter as well.
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final dec ision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for 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 review
below to decide which one applies to 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.
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
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposi tion of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
5
representative in this case, and y our representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, rel igion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Conta ct information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for re view to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
6
(3) Judicial review pursuant to the Whistleblower Protection
Enha ncement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
compete nt jurisdiction.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 judi cial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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.
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 are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono re presentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for th e courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
WASHINGTON, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HARRIS_JUDALON_J_CH_3443_16_0593_I_1_FINAL_ORDER_1993804.pdf | 2023-01-17 | null | CH-3443 | NP |
3,812 | https://www.mspb.gov/decisions/nonprecedential/SANDERS_ALLYSON_M_CH_315H_19_0328_I_1_FINAL_ORDER_1992957.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ALLYSON M. SANDERS,
Appellant ,
v.
NATIONAL ARCHIVES AND
RECORDS ADMIN,
Agency .
DOCKET NUMBER
CH-315H -19-0328 -I-1
DATE: January 13, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael Harris , Saint Louis, Missouri, for the appellant.
Stephani L. Abramson , College Park, Maryland, 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 May 23, 2019 initial decision
in this appeal. Initial Appeal File, Tab 10, 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 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 signific antly contributing to the Board’ s case law. See 5 C.F.R. § 1201.117 (c).
2
(PFR) File, Tab 1. For the reasons set forth below, we DISMISS the appeal as
settled.
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant on
September 19, 2019, and by the agency on February 4, 2021. PFR File, Tab 6.
The document provides, am ong other things, for the dismissal of the appeal in
exchange for the promises made by the agency. Id. at 4.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understan d 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. Depart ment of the Interior , 124 M.S.P.R. 123 ,
¶¶ 11-21 (2017) (holding that the Board may enforce settlement agreements that
have been e ntered 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 en tered into the record
for enforcement by the Board. PFR File, Tab 6 at 5. In addition, we find that the
agreement is lawful on its face and that the parties freely entered into it. Id.
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, and we accept the settlement agreement into the record for
enforcement purposes.
3
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this a ppeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time 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 whic h option is most appropriate in any matter.
4
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the 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
5
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your represe ntative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any require ment of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed 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 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 chal lenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review e ither with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, si gned into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Gu ide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warr ants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SANDERS_ALLYSON_M_CH_315H_19_0328_I_1_FINAL_ORDER_1992957.pdf | 2023-01-13 | null | null | NP |
3,813 | https://www.mspb.gov/decisions/nonprecedential/BEHRENS_NINA_K_CB_7121_20_0013_V_1_FINAL_ORDER_1992960.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
NINA K. BEHRENS,
Appellant ,
v.
DEPARTMENT OF STATE,
Agency .
DOCKET NUMBER
CB-7121 -20-0013 -V-1
DATE: January 13, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jonathan L. Gould , Esquire, Washington, D.C., for the appellant.
Amy H. Granger , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORD ER
¶1 The appellant has requested that the Board review an arbitrator’s decision
issued on February 29, 2020, pursuant to 5 C.F.R. 1201.155 . Request for Review
(RFR) File, Tab 1. For the reasons set forth below, we DISMISS the request for
review as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required 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 review request, the appellant filed a motion to dismiss
the review request with prejudice in accordance with the terms of a settlement
agreement entered in a U.S. District Court for the District of Columbia
proceeding, which the appellant submitted. RFR File , Tab 10. The settlement
agreement provides, among other things, that the appellant shall file a motion to
dismiss her request for revi ew of the arbitrator’s decision . Id.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into t he record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11-21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlem ent agreement, that
they understand its terms, and that they do not intend for the agreement to be
entered into the record for enforcement by the Board. Rather, the settlement
agreement is enforceable in the U.S. District Court for the District of Columbi a.
See RFR File , Tab 10 at 13 . As the parties do not intend for the Board to enforce
the settlement agreement, we need not address the additional considerations
regarding enforcement and do not enter the settlement agreement into the record
for enforcemen t by the Board.
¶5 Accordingly, we find that dismissing the request for review of the
arbitrator’s decision “with prejudice to refiling” (i.e., the parties normally
may not refile this appeal) is appropriate under these circumstances. This is the
3
final decis ion of the Merit Systems Protection Board in this matter . 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 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).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise whic h option is most appropriate in any matter.
4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 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 receives this decision. If the action involves a claim of
5
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination c laims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washingt on, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
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 th e
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 Federa l Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visi t our website at
http://www.mspb.gov/probono for information regarding pro bono representation
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
for Merit Systems Protection Board appellants before the 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 | BEHRENS_NINA_K_CB_7121_20_0013_V_1_FINAL_ORDER_1992960.pdf | 2023-01-13 | null | null | NP |
3,814 | https://www.mspb.gov/decisions/nonprecedential/DAVIS_ANNETTE_AT_0752_09_0860_C_2_ORDER_1993067.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANNETTE DAVIS,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency.
DOCKET NUMBER
AT-0752 -09-0860 -C-2
DATE: January 13, 2023
THIS ORDER IS NONPRECEDENTIAL1
Adam J. Conti , Esquire, Atlanta, Georgia, for the appellant.
Isaiah D. Delemar , Esquire, Atlanta, Georgia, 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.
ORDER
¶1 This case is before the Board on th e agency ’s petition for review of the
compliance initial decision, which granted the appellant’s petition for
enforcement of the Board’s final decision reversing her removal. For the reasons
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
set forth below, we DISMISS the a gency ’s petition for review as untimely filed
without good cause shown . 5 C.F.R. § 1201.114 (e), (g). As a result, we ORDER
the agency to submit satisfactory evidence of compliance regarding the proper
restoration of the appellant’s annual leave, as set forth in the compliance initial
decision.
¶2 On July 10, 2017, the administrative judge issued a comp liance initial
decision in which he found that the agency had improperly removed 416 hours of
the appellant’s annual leave, which had been previously restored to her . Davis v.
Department of the Interior , MSPB Docket No. AT-0752 -09-0860 -C-2,
Compliance Fil e, Tab 8, Compliance Initial Decision (CID) at 3 -6. He also found
that the agency failed to establish a separate leave account for the restored hours
as required by Office of Personnel Management regulations. Id. The compliance
initial decision informed the parties that it would become the final decision of the
Board on August 14, 2017, unless a petition for revie w was filed by that date.
CID at 9.
¶3 On August 17, 2017, the agency filed a p leading styled as “Agency’s
Motion to Reverse Board’s Non -Complian ce Ruling,” in which it challeng ed the
administrative judge’s finding s in the compliance initial decision. Petition for
Review (PFR) File, Tab 1. The same day, the agency also filed a declaration
from an agency official, submitted under penalty of perjury , which appeared to
offer reasons for the untimely filing of the petition for review. PFR File, Tab 2.
The Clerk of the Board acknowledged the first pleading as the agency’s petition
for review and the second pleading as the agency’s explanation o f the facts and
circumstances which it believe d demonstrate d good cause for the untimely filing.
PFR File, Tab 3. The appellant has responded in opposition to both of the
agency’s p leadings . PFR File, Tab 4.
¶4 The Board will waive the time limit for filin g a petition for review only
upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114 (g). To
establish good cause for the untimely filing, a party must show that it exercised
3
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 a party has shown good cause, the Board will consider the
length of the delay, the reasonableness of its excuse and its showing of due
diligence, whether it is proceeding pro se, and whether it has presented evidence
of the existence of circumstances beyond its control that affected it s ability to
comply with the time limits or of unavoidable casualty or misfortune which
similarly s hows a causal relationship to it s inability to timely file its petition.
Moorman v. Department of the Army , 68 M.S.P.R. 60 , 62 -63 (1995), aff’d ,
79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶5 As the reason for its failure to meet the filing deadline in this case, the
agency has offered the declaration of the Comptroller of the N ational Park
Service ’s Southeast Region (SER) . PFR File, Tab 2. The rein he describes his
duties as including managin g the SER’s Budget Office, formulating budgets, and
financial management , and h e also states that he is the appellant’s second -line
supervisor. He explains that, during the “appeal process,” he traveled outside the
continental United States on a temporary work assignment , and he describes the
nature of his duties for that assignment. Id. at 5. He indicates that the mission
lasted 3 days, and he has submitted a copy of the travel voucher that authorized
his travel to Puerto Rico for the period from August 8 through August 11, 2017.
Id. at 5, 7 -8. He states that, while on this assignment, he was unable to retrieve
the supporting documents from the Regional Human Resources Office and get
them to the agency representative before the due date for filing the petition for
review in this case , but he indicates that he did not inform the agency
representative that he would be out of the country and unable to retrieve the
documents before the filing deadline . Id. at 5-6. He further states that, when he
received the documents on August 15, 2 017, he sent them to the agency
representative. The Comptroller maintains that his failure to get the agency
4
representative’s documents was not intended to cause an undue delay or to
prejudice the appellant’s case. Id. at 6.
¶6 However, t he Comptroller has not explained why he could not have secured
the necessary documents in the weeks between the beginning of the petition for
review filing period, July 10, 2017, and the date of his travel. Nor has he
explained why he failed to advise the agency representative of the possible
implications —of his need to travel outside the country during the 3 -day period —
on the timeliness of the petition for review. Moreover, the agency representative
has not submitted a ny declaration and therefo re has failed to explain why, being
aware that he did not have the documentation he believed he needed to file a
petition for review, he did not request an extension of time in which to do so
before the deadline passed . See Grant v. Department of Defense , 59 M.S.P.R.
386, 389 (1993), aff’d , 34 F.3d 1079 (Fed. Cir. 1994) (Table).
¶7 Although the length of the filing delay in this case is only 3 days, the
agency has not shown that it exercised due diligence. In addition, we note that
the agency is, and has been, represented by counsel throughout these proceedings.
Finally , the agency has not presented evidence of circumstances beyond its
control that affected its ability to comply with the filing time limits. Moorman ,
68 M.S.P.R. at 62 -63.
¶8 Accordingly, we dismiss the agency’s petition for review as untimely filed.
ORDER
¶9 We ORDER the agency to submit to the Clerk of the Board within 45 days
of the date of this Order satisfactory evidence of compliance, as set forth in the
administrative judge’s compliance initial decision of July 10, 2017. CID at 6 -7.
This evidence shall adhere to th e requirements set forth in 5 C.F.R.
§ 1201.183 (a)(6)(i) , including submitting evidence and a narrative statement of
compliance. The agency’s submission shall demonstrate that it : (1) properly
restored the appellant’s 416 hours of erroneous ly forfeited annual leave to her
5
annual leave balance, placing it in the separate account reserved for hours
restored pursuant to 5 C. F.R. § 550.805 (g); (2) transfer red all of the appellant’s
annual leave hours restored pursuant to 5 C.F.R. § 550.805 (g), whether
previously or in compliance with the administrative jud ge’s order, into a special
leave account, taking care not to conflate annual le ave hours restored pursuant to
5 C.F.R. § 550.805 (g) with annual leave hours restored pursuant to 5 C.F.R.
§ 630.306 ; and (3) allowed the appellant to schedule and use her annual leave
hours restored pursuant to 5 C.F.R. § 550.805 (g), and /or this Order, by the end of
the leave year in progress 4 years after the date on which the separate account is
established. We ORDER the appellant to cooperate in good faith in the agency’s
efforts, and to provide all necessary infor mation the agency requests to help it
carry out the Board’s Order. The agency must serve all parties with copies of its
submission.
¶10 The Board will assign a new docket number to this matter, MSPB Docket
No. AT-0752 -09-0860 -X-1. All subsequent filings shou ld refer to the new docket
number set forth above and should be faxed to (202) 653 -7130 or mailed to the
following address:
Clerk of the Board
U.S. Merit Systems Protection Board
1615 M Street, N.W.
Washington, D.C. 20419
Submissions may also be made by electronic filing at the MSPB’s e -Appeal site
(https://e -appeal.mspb.gov) in accordance with the Board’s regulation at 5 C.F.R.
§ 1201.14 .
¶11 The appellant may respond to the agency’s eviden ce of compliance within
20 days of the date of service of the agency’s submission. 5 C.F.R.
§ 1201.183 (a)(8). If the appellant does not respond to the agency’s evidence of
compliance, the Board may assume that she is satisfied with the agency’s actions
and dismiss the petition for enforcement.
6
¶12 The agency is reminded that if it fails to provide adequate evidence of
compliance , the responsible agency official and the agency’s representati ve may
be required to appear before the General Counsel of the Merit Systems Protection
Board to show cause why the Board should not impose sanctions for the agency’s
noncompliance in this case. 5 C.F.R. § 1201.183 (c)(1). The Board’s authority to
impose sanctions includes the authority to order that the responsible agency
official “shall not be entitled to receive payment for service as an employee
during any period that the order has n ot been complied with.” 5 U.S.C.
§ 1204 (e)(2)(A).
¶13 This Order does not constitute a final order and is therefore not subject to
judicial review under 5 U.S.C. § 7703 (a)(1). Upon final resolution of the
remaining issues in this petition for enforcement by the Board, a final order shall
be issued which shall be subject to judicial review.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | DAVIS_ANNETTE_AT_0752_09_0860_C_2_ORDER_1993067.pdf | 2023-01-13 | null | AT-0752 | NP |
3,815 | https://www.mspb.gov/decisions/nonprecedential/CHIN_YOUNG_CHRISTOPHER_R_DC_0752_11_0394_I_1_FINAL_ORDER_1993087.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHRISTOPHER R. CHIN -YOUNG,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DC-0752 -11-0394 -I-1
DATE: January 13, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher R. Chin -Young , Tallahassee, Florida, pro se.
Gary L. Rowell , Esquire, Redstone Arsenal, Alabama, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Membe r
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal as settled. On petition for review, the appellant
argues that the settlement agreement is invalid because his attorney had not been
properly designated and therefore lacked the authority to settle 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
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 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 1 201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.2
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 Here, even though the appellant did not sign the designation of
representative that his attorney submitted, his attorney engaged in discovery, filed
prehearing su bmissions, participated in a prehearing conference, entered into
stipulations, participated in settlement negotiations, and signed the settlement on
the appellant’s behalf.3 At no point did the appellant contend that counsel was
2 Because we so find, we need not address the timeliness of the appellant’s petition for
review.
3 After the close of the record on review, the attorney, at the apparent request of the
appellant, submitted t hree additional filings —identical statements regarding the
unexecuted designation of representative form. Petition for Review (PFR) File,
Tabs 8-10; see 5 C.F.R. § 1201.114 (k). To the extent that the appellant requested the
attorney to submit these statements as evidence in support of his arguments on review ,
the Board does not accept such submissions after the close of the record absent a
motion seeking leave to file and describ ing the nature of and need for the pleading s.
5 C.F.R. § 1201.114 (a)(5) , (k) . The appellant did not file such motion. In any event,
the statemen ts are duplicative of a prior filing , submitted prior to the close of the record
on review, and are not material. PFR File, Tabs 7-10; see 5 C.F.R. § 1201.114 (k)
(explaining that if a party wishes to submit a pleading after the record is closed, the
party must show that the evidence is new, i.e., that it was not readily available before
3
not his designated represe ntative or that he lacked settlement authority. In other
words, counsel’s actions bore the indicia of authority especially given the
appellant’s failure to indicate otherwise. Even if counsel lacked settlement
authority, the appellant personally signed t he settlement agreement on his own
behalf. Cf. Swidecki v. U.S. Postal Service , 101 M.S.P.R. 110 , ¶ 21 (2006)
(stating that a set tlement agreement is valid even when an appellant who is
represented signs the agreement but his representative does not). Therefore, the
appellant has not met his “heavy burden” of showing that his representative
lacked settlement authority. Howell v. U.S. Postal Service , 86 M.S.P.R. 249 , ¶ 4
(2000) . He thus has not shown that the settlement agreement is invalid.
NOTICE OF APPEAL R IGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time 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
the record closed, and material ); see also Russo v. Veterans Administra tion, 3 M.S.P.R.
345, 349 (1980) (holding that the Board will not grant a petition for review based on
new evidence absent a showing that it is of sufficient weight to warrant an outcome
different from that of the initial decision). We therefore find that these submissions are
not a basis for granting the petition for review. The appellant has also attempted to file
two additional pleadings, which the Office of the Clerk of th e Board rejected and
returned to him because they did not comport with Board regulations. PFR File,
Tabs 11-12.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisio ns. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition f or review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practi ce, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono repr esentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after yo u
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representa tive receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, na tional origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then 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:
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
Enha ncement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
compete nt jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
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 o f 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/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CHIN_YOUNG_CHRISTOPHER_R_DC_0752_11_0394_I_1_FINAL_ORDER_1993087.pdf | 2023-01-13 | null | DC-0752 | NP |
3,816 | https://www.mspb.gov/decisions/nonprecedential/CHIN_YOUNG_CHRISTOPHER_R_DC_0752_15_1030_I_1_FINAL_ORDER_1993097.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHRISTOPHER R. CHIN -YOUNG,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DC-0752 -15-1030 -I-1
DATE: January 13, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chungsoo Lee , Feasterville, Pennsylvania, for the appellant.
Richard Kane , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDE R
¶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 ad ministrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
or regulation or the erroneous a pplication of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affec ted the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
supplement the administrative judge’s analysis of the lack of candor charge and to
clarify and supplement the administrative judge’s analysis of the appellant’s
reprisal claims, we A FFIRM the initial decision.
BACKGROUND
¶2 The appellant was formerly employed by the agency as a GS-15
Supervisory Program Analyst, Chief Integration Office (CXO) Directorate , Office
of the Army Chie f Information Officer in Fort Belvoir, Virginia , until the agency
removed him effective July 31, 2015. Initial Appeal File (IAF), Tab 9 at 41,
Tab 11 at 41, Tab 98 at 5-21. The facts underlying this appeal, as found by the
administrative judge, are as follows. Beginning in 2014, the agency began plans
to reorg anize and dissolve the CXO Directorate. IAF, Tab 128, Initial Decision
(ID) at 9-11. In early 2014, the appellant was detailed to work in the Cyber
Security Directorate, where he remained until April 21, 2014, when he departed
to Camp Atterbury, Indiana , to prepare for deployment to Afghanistan through the
Ministry of Defense Advisors (MoDA ) program .2 ID at 11.
2 MoDA is a Department of Defense (DOD) program that partners DOD civilian experts
with foreign counterparts to build ministerial core competencies such as personnel and
readiness, logistics, strategy and policy, and financial management. See
3
¶3 The appellant reported to Afghanistan on or about July 3, 2014, for a tour
that was scheduled to last 1 year. Id. How ever, he returned to the United States
within 2 months of his arrival.3 Id. Following his return, the appellant emailed
his former supervisor on the Cyber Security Directorate detail to inform him he
would be returning to work in October. ID at 12. Shortly thereafter, the new
Director of the Cyber Security Directorate decided to detail the appellant to the
Cyber Program Integration and Training Division, working out of the Pentagon.
ID at 13. The appellant was notified of this decision, via an email from the Chief
of Human R esources on November 3, 2014. Id. After an initial meeting with his
new supervisor for the detail on December 17, 2014, the appellant effectively
declined the detail and refused to report for work. ID at 14.
¶4 Effective July 31, 2015, the agency removed the appellant from his
Supervisory Program Analyst position based on five charges of absent without
leave (AWOL), failure to comply with leave procedures, failure to follow
instructions, insolence, and lack of candor. IAF, Tab 98 at 5-21. The appellant
filed a Board appeal challenging his removal and raising affirmative defenses of
discrimination, retaliation, whistleblower reprisal, and harmful procedural error.
IAF, Tab 1 at 5, Tab 41. He also contended that the November 3, 2014 detail was
improper a nd, but for the improper detail, he would not have been removed. IAF,
Tab 41 at 6-10.
¶5 After holding the appellant’s requested hearing, the administrative judge
issued a lengthy and detailed initial decision, sustaining the appellant’s removal.
ID at 1-77. The administrative judge found that the agency proved all of its
charges and the appellant failed to prove his affirmative defenses. ID at 19-72.
https://comptroller.defense.gov/Portals/45/Documents/defbudget/fy2022/budget_justific
ation/pdfs/01_Operation_and_Maintenance/O_M_VOL_1_PART_1/DSCA_OP -5.pdf.
3 On August 23, 2014, the appellant’s immediate redeployment was recommended due
to his poor communication skills, failure to accept leadership guidance, and inability to
successfully support the mission. IAF, Tab 12 at 35-36.
4
She also found that the penalty of removal promoted the efficiency of the service
and was reasonable in light of the appellant’s serious and repeated disrespectful
conduct.4 ID at 72-76.
¶6 The administrative judge found that the agency proved that the appellant
was AWOL for 798 hours from December 18, 2014, through May 30, 2015. ID
at 19-29. Regarding th e failure to follow leave procedures charge, she found that
the agency proved that on specific dates between December 19, 2014, and
May 29, 2015, the appellant failed to submit a leave request in support of his
absences in accordance with written instructi ons. ID at 29-31. The
administrative judge similarly found that the agency proved its charge that the
appellant failed to follow instructions to report to work under the detail. ID
at 31-34. Regarding the insolence charge, the administrative judge found that the
agency proved that the appellant’s communications with agency officia ls on
various dates in December 2014 and January 2015 were disrespectful. ID
at 35-37. Finally, the administrative judge sustained the lack of candor charge,
finding that the agency proved that, on December 30, 2014, the appellant
represented to the agency that he was still subject to deployment orders and
unsure where he should be working when he knew that his tour had been curtailed
on August 29, 2014. ID at 40-42.
¶7 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 3. The agency has opposed the appellant’s petition.5 PFR File, Tab 15.
The appellant has filed a reply. PFR File, Tab 16.
4 The appellant does not challenge these findings, and we discern no error in the
administrative judge’s analysis.
5 Although the agency’s initial response was rejected for failure to comply with the
page lim itations set forth in 5 C.F.R. § 1201.114 (h), the Clerk of the Board afforded the
agency until September 7, 2016, to file a perfected response. PFR File, Tab 1. Thus,
we find the agenc y’s September 7, 2016 response was timely filed and does not exceed
the 30 -page limitation. PFR File, Tab 15. Therefore, we deny the appellant’s request
to strike the agency’s response. PFR File, Tab 16 at 4-5.
5
DISCUSSION OF ARGUME NTS ON REVIEW
The administ rative judge properly found that the appellant was required to
comply with the agency’s directive t o report to a detail in the Cyber
Security Directorate.
¶8 The appella nt argued that the agency could not prove i ts charges because
his November 3, 2014 detai l was improper for various reasons, including that he
could not perform the duties because he did not have a Top Secret clearance, it
was improper to detail him to report to a supervisor who was subordinate to him,
it lasted longer than 120 days, and he wa s entitled to occupy his position of
record. IAF, Tab 41 at 6-7. Although the administrative judge found that such
arguments lacked merit, ID at 15-19, she also found that the appellant could not
refuse to come to work because he felt his detail was impr oper, ID at 16 (citing
Bowen v. Department of Justice , 38 M.S.P.R. 332 (1988) ). Rather, he was
required to report to the detail assignment as ordered with the option to seek
redress for any grievance he may have had concerning the circumstances
surrounding his detail. Id. We discern no erro r in the administrative
judge’s analysi s.
¶9 On review, the appellant challenges various findings by the administrative
judge concerning the facts surrounding his detail. For example, he contends that
she erred in her conclusions regarding the agency’s authority to detail him, the
reasons why h e was initially detailed to the Cyber Security Directorate in early
2013, when CXO was slated to be dissolved, and when it was actually dissolved.
PFR File, Tab 3 at 10-13. We find that such arguments, which go to the merits of
the agency’s decision to d etail him, are not before the Board and, thus, do not
provide a basis for reversing the initial decision, sustaining the appellant’s
removal. See, e.g ., Bowen , 38 M.S.P.R. at 334 (stating that the Board lacks
jurisdiction to review an agency’s decision to detail an employee to another
position when there is no reduction in pay); Chance v. Federal Aviation
Administration , 5 M.S.P.R. 277, 279 (1981) (f inding that the Board lacked
jurisdiction to review the appellant’s detail to another GS -15 position as part of a
6
reorganization when he had suffered no loss in grade or pay and had not yet been
affected by any personnel action that would require or permit an a gency to use
reduction -in-force procedures).
The administrative judge properly found that the agenc y proved its charges.
¶10 In evaluating the lack of candor charge , the administrative judge applied the
standard set forth by the Board’s reviewing court in Ludlum v. Department of
Justice , 278 F.3d 1280 , 1284 (Fed. Cir. 2002), in which the court stated that a
lack of candor charge may be proven by showing that the employee failed “to
disclose something that, in the circumstances, should have been disclosed in order
to make the given statement accurate and comp lete,” and she found that the
agency proved specifi cation 2 and the charge . ID at 37. On review, the appellant
contends that the administrative judge applied an incorrect standard , and she
failed to make a finding regarding whether he knowingly gave inco rrect or
incomplete information . PFR File, Tab 3 at 22-23. The appellant also contends
that the administrative judge erred in finding that the agency proved
specification 2 of the lack of candor charge. Id. at 14-16, 22-23.
¶11 We agree with the appellant that a lack of candor charge requires proof that
the employee gave incorrect or incomplete information and that he did so
knowingly . Fargnoli v. Department of Commerce , 123 M.S.P.R. 330, ¶ 17
(2016) . We find no material error with the initial decision , however, because the
administrative judge made detailed findings sufficient to satisfy both
Fargnoli criteria.
¶12 In specification 2, the agency charged the appellant with representing to
CyberSecurity Director E.M. in a December 30, 2014 meeting that he was still
subject to deployment orders with MoDA through June 27, 2015 , and since his
return from Afghanistan, he was unsure where he should be working, despite the
fact that he knew that his tour and travel orders had been curtai led on August 29,
2014. IAF, Tab 9 at 68. Importantly, the administrative judge found that the
appellant did not dispute the agency’s represen tation that he made the statement
7
as alleged during this meeting. ID at 40. The administrative judge found that the
appellant was “clearly aware” that he would not be returning to Afghanistan
based on an August 29, 2014 letter of release for redeployment —which
referenced his release from his current assignment and explicitly stated that he
would not be returning to the assignment —and that his representations to the
contrary about his MoDA assignment were “disingenuous .”6 ID at 38, 41; IAF,
Tab 12 at 34. The administrative judge further found that there was “simply no
reason for the appellant to believe or assert that he was unsure wh ether or not he
was working for the agency or for MoDA.” ID at 41. Finally , the administrative
judge concluded that the a ppellant’s representation that he was still on
deployment orders to MoDA was “clearly erroneous and likely made with an
intent to disavow any intent of the agency to require him to report for work on the
detail assignment.” ID at 41-42. For these reasons , we find that the
administrative judge implicitly found that the agency proved that the appellant
provided incomplete or inaccurate information to E.M. during the December 30,
2014 meeting and did so knowingly . We affirm as modified herein the
administra tive judge’s decision to sustain specification 2 and the lack of candor
charge. ID at 42.
6 We have also considered the appellant’ s assertion that the administrative judge erred
in finding that he was released from his MoDA assignment on August 29, 2014 , that she
failed to consider his testimony that the August 29, 2014 letter was merely a travel
authorization and did not establish t hat he had been released from his MoDA
assignment for redeployment to the agency , and that he was never released from his
MoDA assignment. PFR File, Tab 3 at 14-16. The administrative judge considered
these arguments, but she found that the appellant’s t estimony was not credible because
it conflicted with emails he sent to agency officials after his deployment indicating that
he would be returning to work and that he had completed his MoDA detail on
September 30, 2014, following his return from Afghanista n and medical checkout. ID
at 41-42. Thus, we find that the appellant’s arguments constitute mere disagreement
with the administrative judge’s findings and do not provide 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
disturb the administrative judge’s findings when she considered the evidence as a
whole, drew app ropriate inferences, and made reasoned conclusions); Broughton v.
Department of Health & Human Services , 33 M.S.P.R. 357 , 359 (1987) (same).
8
¶13 To the extent the appellant does not identify any other specific errors the
administrative judge made in evaluating the agency’s evidence in support of its
charges or applying the law , the Board will not embark upon a complete review of
the record. 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 .
The administrative judge properly found that the appellant failed to prove his
affirmative defense of harmful procedural error.
¶14 On review, the appellant reiterates his argument that the agency failed to
provi de him with copies of all of the documents it relied upon in proposing his
removal. PFR File, Tab 3 at 5-7. He contends that, in his response to the
proposal, he requested that the materials be sent to him at his mailing address. Id.
at 6. The administ rative judge found that the appellant was advised that he could
contact a human resources specialist to make arrangements to review the material
relied upon but that he conceded at the hearing that he failed to do so. ID at 65.
The administrative judge further found that, although the appellant testified that
he lived in Georgia and would have traveled to Virginia to review the records if
the agency paid him to do so, the agency was not required to so do. ID at 65-66.
She further noted that, had the ap pellant properly reported to duty in Virginia as
he had been repeatedly instructed to do, he could have easily made arrangements
to review the documents. ID at 66. We discern no error in the administrative
judge’s analysis. Our reviewin g court has held that an agency’ s requirement that
docu ments be reviewed at the agency’ s office, although an “inconvenience,”
does not constitute harmful error. Novotny v. Department of Transportation ,
735 F.2d 521 , 523 (Fed. Cir. 1984).
9
The administrative judge properly found that the appellant failed to prove his
reprisal affirmative defenses.7
¶15 The administrative judge considered the appellant’s claims that he was
removed in reprisal for engaging in protected activity, including filing prior
Board appeals, engaging in equal employment opportunity (EEO) activity, and
making various whistleblowing disclosures, but she found that he failed to prove
such claims. ID at 55-65. On review, the appellant challenge s some of the
administrative judge’s findings regarding these reprisal claims. PFR File, Tab 3
at 7-10. For the following reasons, we modify the initial decision to supplement
the administrative judge’s an alysis, but we agree with her ultimate conclusion
that the appellant did not prove these reprisal affirmative defenses.
Reprisal for Whistleblowing Disclosures and Protected Activity
¶16 An appellant asserting an affirmative defense of reprisal for whistleblowing
disclosures or other protected activity must show, by preponderant evidence,8 that
he made a protected disclosure pursuant to 5 U.S.C. § 2302 (b)(8) or engaged in
protected activity as defined in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), and (D) and
the disclosure or protected activity was a contributing factor in the p ersonnel
7 The appellant does not challenge the administrative judge’s findings that he failed to
prove his affirmative defenses of discrimination based on race, color, sex, or national
origin. ID at 42-46. We discern no error in the administrative jud ge’s analysis.
Although she discussed the types of direct and circumstantial evidence set forth in
Savage v. Department of the Army , 122 M.S.P.R. 612 , ¶ 51 (2015), she properly
considered the evidence as a whole and found that the appellant failed to show that his
removal was motivated by discrimination. See Gardner v. Department of Veterans
Affairs , 123 M.S.P.R. 647 , ¶ 29 (2016) (clarifying that the types of evidence set forth in
Savage are not subject to differing evidentiary standards and explaining that “all
evidence belongs in a single pile and must be evaluated as a whole”), clarified by
Pridgen v. Office of Management & Budget , 2022 MSPB 31 , ¶¶ 23-24. Similarly, the
appellant does not challenge, and we discern no error with, the administrative judge’s
finding that he failed to prove his affirmative defense of disability discrimination.
ID at 46-54.
8 Preponderant evidence is the degree o f relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
10
action(s). Ayers v. Department of the Army , 123 M.S.P.R. 11, ¶ 12 (2015);
Alarid v. Department of the Army , 122 M.S.P.R. 600, ¶ 12 (2015) ; see 5 U.S.C.
§ 1221 (e)(1). If the appell ant establishes a prima facie case of such reprisal, then
the burden of persuasion shifts to the agency to show by clear and convincing
evidence that it would have taken the same personnel action(s) absent any
whistleblowing disclosure or protected activit y. Ayers , 123 M.S.P.R. 11, ¶ 12;
Alarid , 122 M.S.P.R. 600, ¶ 12; see 5 U.S.C. § 1221 (e)(2).
¶17 In the initial decision, the administrative judge identified eight separate
disclosures raised by the appel lant: (1) a 2007 efficiency study conducted by his
prior Command , which found various regulatory violations ; (2) a 2010 complaint
to the Office of the Inspector General; (3 ) disclosures to then -Deputy Chief
Information Officer M.K. in January 2012 o r 2013 about contract issues; (4 ) a
2013 disclosure of two contracts steered by M. K. to two specific companies; (5 ) a
2014 disclosure of a prohibited personnel practice involving the hiring of A.A.;
(6) a 2014 disclosure involving alleged improper hiring of E.M. as Director of
Cyber Security;9 (7) a July 2014 disclosure to the Special Inspector General for
Afghanistan Reconstruction (SIGAR) about a contract with the Defense
Reconnaissance System (disclosure of fraud, waste, and abuse regarding a
telecommunication tower); and ( 8) a late 2014 Office of Special Counsel ( OSC )
complaint alleging fraud, abuse, and contract violations regarding some
contracting officers. ID at 58-61.
¶18 The administrative judge explicitly found in the initial decision that no one
involve d in the removal action had k nowledge of disclosures 1 through 5 and 8.
ID at 58-62. The appellant did not challenge these findings on review. As noted
above, supra note 9, disclosure 6 was contained in the same Memorandum as
9 Disclosures 5 and 6 appear to have been contained in the same undated Memorandum
written by the appellant. Hearing Transcript (HT) 4 at 183-90 (testimony of the
appellant); IAF, Tab 88 at 19-25. However, the administrative judge noted in the
hearing that the appellant testified that he emailed the Memorandum in June or
July 2014. ID at 61; HT 4 at 190 (test imony of the appellant).
11
disclosure 5; therefore, we believe that the administrative judge implicitly found
that the appellant did not prove that anyone involved in the removal action had
knowledge of disclosure 6. Accordingly, because we affirm the administrative
judge’s explicit and implicit knowledge findings, we do not consider disclosures
1 through 6 and 8 further. See, e.g. , 5 U.S.C. § 1221 (e)(2) ( explaining that i t is
unnecessary to reach the clear and convincing analysis stage until “ after a finding
that a protected disclosure was a contributing factor” in a personnel action ).
¶19 The administrative judge did not make any findings regarding the proposing
and/or deci ding officials’ knowledge of disclosure 7.10 ID at 61-62. We modify
the initial decision in this regard. The record is not well developed on this issue .
However, b ecause the proposing and deciding officials testified that they each
had some generalized knowledge of the appellant’s allegations of fraud, waste,
and/or abuse, H earing Transcript (H T) 2 at 202 (testimony of the pr oposing
official); HT 4 at 71-72 (testimony of the deciding official), and the appellant’s
complaint to SIGAR involved allegations of fraud, waste, and abuse of funds
regarding a contract for a telecommunication tower, ID at 61; HT 4 at 203-04
(testimony of the appellant), we find that the administrative judge implicitly
found that the proposing and/or deciding officials h ad knowledge of his SIGAR
complaint (disclosure 7). 5 U.S.C. § 1221 (e)(1)(A). The timing element of
contributing factor is sa tisfied because the appellant made the SIGAR complaint
in July 2014, a nd he was removed in July 2015. 5 U.S.C. § 1221 (e)(1)(B) ; HT 4
at 202-04 (testimony of the appellant); ID at 5, 61; IAF, Tab 1 at 49-65; see
Mastrullo v. Department of Labor , 123 M.S.P.R. 110, ¶ 21 (2015) ( noting that the
Board has held that a personnel action taken within app roximately 1 to 2 years of
the appellant’s disclosure satisfies the contributing factor knowledge/timing test).
10 The administrative judge also did not make specific findings regarding whether this
disclosure constituted a whistleblowing disclosure pursuant to 5 U.S.C. § 2302 (b)(8) or
activity protected by 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). We modify the
initial decision to find that the appellant’s complaint to SIGAR constituted activity
protected by 5 U.S.C. § 2302 (b)(9)(C).
12
Having found that the appellant’s SIGAR complaint was a contributing factor in
the removal action, we will proceed to the next step of the analysis.
¶20 In determining whether an agency ha s shown by clear and convincing
evidence that it would have taken the same personnel action in the absence of a
whistleblowing disclosure, the Board will consider the following “Carr factors ”:
the strength of the agency’s evidence in support of its action ; the existence and
strength of any motive to retaliate on the part of the agency officials who were
involved in the decision; and any evidence that the agency takes similar ac tions
against employees who are not whistleblowers but who are otherwise similar ly
situated. Soto v. Department of Veterans Affairs , 2022 MSPB 6 , ¶ 11; see Carr v.
Social Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999).11
¶21 The administrative judge conducted a brief and generic Carr factor analysis,
finding in pertinent part th at the evidence was “overwhelmingly clear” that the
agency would have removed the appellant absent any whistleblowing disclosures
or activity. ID at 64. We supplement the initial decision to explicitly address
each of the Carr factors. First, the agency ’s evidence was very strong as
evidenced by the administrative judge’s findings in the initial decision. ID
at 19-42 (sustaining the charges of AWOL, failure to follow leave procedures,
failure to follow instructions, insolence, and lack of candor). Rega rding the
second Carr factor, the appellant’s SIGAR complaint alleging fraud, waste,
and/or abuse could create some motive to retaliate. See Chavez v. Department of
Veterans Affairs , 120 M.S.P.R. 285 , ¶ 33 (2013) (finding that, even if an
appellant’s disclosures do not directly implicate or harm her superiors, her
11 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
Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112-199, 126 Stat.
1465, extended for 3 years in the All Circuit Review Extension Act, Pub. L.
No. 113-170, 128 Stat. 1894, and eventually made permanent in the All Circuit Review
Act, Pub. L. No. 115-195, 132 Stat. 1510, appellants may file petitions for judicial
review of Board decisions in whistleblower reprisal cases with any circuit court of
appeals of competent jurisdiction. See 5 U.S.C. § 7703 (b)(1)(B).
13
criticism reflecting on them both in their capacity as managers and employees is
sufficient to establish a substantial retaliatory motive) . However, we do not find
that any such m otive is strong because it does not appear that the appellant’s
SIGAR complaint implicated the proposing or deciding officials. Thus, this
factor may slightly weigh in the appellant ’s favor . Finally , regarding Carr factor
3, it does not appear that the agency put forth any evidence about potential
comparators . However, the agency’s inability to identify any comparators is not
surprising given t he unique circumstances in this appeal , particularly the extent of
the sustained misconduct coupled with the appellant’s GS -15 status. Indeed, the
deciding official testified that he had “not encountered a senior -level employee
with five charges this sign ificant and going on . . . for this long period of time.”
HT 4 at 30 (testimony of the deciding official). Accordingly, we do not accord
this Carr factor much weight in our analysis. On balance, we conclude that the
strength of the agency’s evidence con siderably outweighs the remaining Carr
factors, and we find that the agency has proven by clear and convincing evidence
that it would have removed the appellant absent his SIGAR complaint .
¶22 On review, the appellant contends that the administrative judge failed to
consider that the August 23, 2014 letter from a Senior Telecommunications
Advisor recommending his immediate redeployment from his MoDA detail , supra
¶ 3 n.3, constituted retaliation for his SIGAR complaint regarding fraud, waste,
and abuse, and he filed a complaint with OSC in February 2015 regarding this
letter . PFR File, Tab 3 at 7-9. He also asserts that the proposing official testified
that he considered the August 23, 2014 let ter in making the decision to propose
his removal. PFR File, Tab 3 at 9. These arguments do not warrant a
different outcome.
¶23 Importantly, as the appellant notes on review, PFR File, Tab 3 at 7, the
administrative judge discussed the August 23, 2014 let ter in the initial decision in
the context of her analysis of specification 1 of the lack of candor charge, which
she did not sustain , ID at 37-40. Moreover, t he proposing official’s alleged
14
knowledge and/or consideration of the August 23, 2014 letter doe s not warrant a
different outcome. Although the letter itself does not explicitly or implicitly
reference any of the appellant’s disclosures or activity , IAF, Tab 12 at 35-36, we
have already found preponderant evidence that the proposing and/or deciding
officials had knowledge of the appellant’s SIGAR complaint . Moreover, we have
affirmed the administrative judge’s finding that the agency proved by clear and
convincing evidence that it wou ld have removed him absent this activity .
¶24 The appellant also ass erts on review that his February 23, 2015 OSC
complaint of whistleblower reprisal (MA -15-2358) led to his removal. PFR File,
Tab 3 at 8-9; IAF, Tab 88 at 13-17. At first glance, it does not appear that he
raised this argument below. However, upon closer inspection, there is a
discrepancy in the record that we need to resolve before addressing this argument.
The record reflects that the administrative judge identified a “late 2014” OSC
complaint as one of the appellant’s disclosures, IAF, Tab 100 at 17, and she
evaluated such a disclosure in the initial decision, finding that no one involved in
the removal had knowledge of this OSC complaint or any allegations therein, ID
at 61-62. It appears that the administrative judge’s reference to a “late 2014”
OSC complaint stemmed from the appellant’s revised prehearing submission , in
which he used the term “late 2014” to describe his OSC complaint . IAF, Tab 84
at 16. There , however, the appellant refer enced exhibit MMMM -1, which was, in
fact, the February 23, 2 015 OSC complaint and docket number identified above.
Id. (citing IAF, Tab 88 at 13-15). Thus, the “late 2014” OSC complaint discussed
below and in the initial decision is the same as the February 23, 2015 complaint
that the appellant discusses on review . Having resolved this apparent
discrepancy, we discern no error with the administrative judge’s conclusion that
15
no one involved in the removal had knowledge of any such OSC complaint or any
of the allegations contained therein.12 ID at 61-62.
¶25 Finally, the appellant asserts on review that the August 23, 2014 letter was
in “direct retaliation” for his SIGAR complaint, he appears to suggest that the
author of the August 23, 2014 letter had knowledge of his SIGAR complaint
because the letter was issued “[a] lmost simultane ously,” and he states that he
filed an OSC retaliation complaint regarding this letter. PFR File, Tab 3 at 8.
This issue was not explicitly raised below,13 IAF, Tabs 100, 105, and the
12 To the extent that the appellant is asserting on review that the Board has jurisdiction
over his claim that his November 2014 detail was in reprisal for whistleblowing
disclosures or protected activity, and that he exhausted his ad ministrative remedy with
OSC regarding such a claim, PFR File, Tab 3 at 21-22, he may file a separate individual
right of action (IRA) appeal with the regional office. If he has already filed such an
appeal, the Board will address it in due course.
13 By contrast, in the initial decision, the administrative judge considered the
appellant’s argument, explicitly made below, that the decision to eliminate the CXO
Directorate prior to his deployment was in retaliation for whistleblowing disclosures or
activity. ID at 62; IAF, Tab 105 at 6-7. The administrative judge noted that a detail
is not otherwise appealable to the Board and, thus, the appellant would normally be
required to file an IRA appeal after exhausting his administrative remedy with OSC. ID
at 62. However, the administrative judge considered the argument because of the
appellant’s contention, explicitly made below, that he would not have been detailed
when he returned from Afghanistan and the conduct at issue would not have occurred.
Id. The administrative judge noted that M.K. recommended the elimination of the CXO
Directorate and Lieutenant General R.F. approved the recommendation. Id. She found
that Lieutenant General R.F. did not have any knowledge of any whistleblowing
disclosures at the time he made the decision to eliminate the CXO Directorate, and
M.K. did not recall any discussions about contract fraud or other alleged improprieties;
the administrative judge found alternatively that, even if M.K. did have such
knowledge, the agenc y established by clear and convincing evidence that it would have
detailed him absent any disclosures. ID at 62-64. As relevant to the removal appeal,
the administrative judge noted that M.K. was retired at the time the removal was
proposed and/or effect ed, and there was no showing that M.K. or Lieutenant R.F. was
at all involved in the decision to remove the appellant. ID at 63. Neither party
challenges on review the administrative judge’s decision to concomitantly evaluate the
elimination of the CXO D irectorate as part of this reprisal claim, and the appellant
does not appear to challenge specifically any of the administrative judge’s findings
regarding knowledge or the agency’s satisfaction of its clear and convincing burden in
this regard.
16
appellant does not offer any evidence on review that wou ld warrant a different
outcome . Therefore, we need not address this contention further .14 See, e.g. ,
Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980) (statin g that
generally 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 dil igence) ; Russo v. Veterans
Administration , 3 M.S.P.R. 345, 349 (1980) (stating that the Board will not grant
a petition for review based on new evide nce absent a showing that it is of
sufficient weight to warrant an outcome different from that of the initial
decision). We have considered the appellant’s remaining arguments on revie w,
but none warrant a different outcome.
Reprisal for EEO Complaints and Prior Board Appeals
¶26 In the initial decision, the administrative judge cited and applied the
“genuine nexus” standard to evaluate these claims. ID at 54-58 (citing
Cloonan v. U.S. Postal Service , 65 M.S.P.R. 1, 4 (1994), and Rockwell v.
Department of Commerce , 39 M.S.P.R. 217, 222 (1989)). The administrative
judge found that the appellant failed to prove that any agency official was aware
of his prior Board activity. ID at 55-56. She noted that only the deciding official
was aware of the appellant’s prior EEO complaints , but she implicitly credited the
deciding official’s testimony denying that such activity had any impact on his
decision to uphold the proposed removal. ID at 56-57. The administrative judge
further found that the appellant failed to prove that his prio r EEO complaints and
Board appeals were a motivating factor in the removal action, and she concluded
that he failed to prove these reprisal claims. ID at 57.
¶27 The administrative judge’s reliance on the “genuine nexus” standard was
improper. In Mattison v. Department of Veterans Affairs , 123 M.S.P.R. 492 , ¶ 8
14 To the extent that the appellant contends that he exhausted his administrative remedy
with OSC regarding the SIGAR complaint as it relates to the redeployment action, as
noted above, he may file an IRA appeal with the regional office.
17
(2016), the Board clarified that the “genuine nexus” standard applies to activity
protected by 5 U.S.C. § 2302 (b)(9)(A)(ii), when that activity does not include
allegations of reprisal for EEO activity protected by Title VII of the Civil Rights
Act of 1964, as amended . The appellant’s prior EEO complaints obviously
involve such activity and his prior removal appeal involved allegations of reprisal
for such activity. See, e.g. , Chin -Young v. Department of the Army , MSPB
Dock et No. DC-0751 -11-0394 -I-1, Initial Appeal File, Tab 1 at 13 (alleging, in
the earlier removal appeal , discrimination based on race, national origin, and
color, and reprisal for prior EEO activity). Therefore, the administrative judge
should have analyzed these reprisal claim s pursuant to the motivating factor
standard described in Savage v. Department of the Army , 122 M.S.P.R. 612, ¶ 51
(2015) , overruled in part by Pridgen v. Office of Management & Budget , 2022
MSPB 31 , ¶¶ 23-25, as she did the appellant’s race, color, sex, and national origin
discrimination claims. ID at 42-46.
¶28 Ultimately, though, the administrative judge’s error does not warrant a
different outcome. As noted above, the administrative judge concluded that the
appellant “failed to provide any evidence that any Board or EEO activity or
complaints were motivating factors in the agency’s action.” ID at 57. The
appellant’s arguments on review do not warrant a different outcome regarding his
EEO reprisal claims involving race, color, s ex, and national
origin discrimination .15
¶29 The appellant’s claim of reprisal for EEO activity involving allegations of
disability discrimination are protected by the Americans with Disabilities Act, as
amended by the Americans with Disabilities Act Amendme nts Act, the standards
of which have been incorporated by reference i nto the Rehabilitation Act.
15 Because we find that th e appellant did not meet his initial burden to prove his EEO
activity involving race, color, sex, and national origin discrimination was a motivating
factor in the agency’s action , we do not reach the question of whether this EEO activity
was a “but -for” c ause of th at action. See Pridgen , 2022 MSPB 31 , ¶¶ 20-22, 29 -33. .
18
29 U.S.C. § 791(f); 42 U.S.C. § 12203 (a); Pridgen , 2022 MSPB 31, ¶¶ 26, 36.
This type of claim requires the appellant prove “but -for” ca usation as his initial
burden. Pridgen , 2022 MSPB 31, ¶¶ 35-38, 40 -41. Because we agree with the
administrative judge’s findi ng that he did not meet his initial burden to prove
motivating factor, we also find that he would be unable to prove “but -for”
causation. The appellant’s remaining argum ents do not warrant a
different outcome.
We decline to consider the appellant’s new argume nt raised for the first time
on review.
¶30 On review, the appellant contends that the agency violated 10 U.S.C.
§ 1586 (c)(1) -(2) by failing to restore him to his position of record following hi s
return from Afghanistan. PFR File, Tab 3 at 20-21. The appellant failed to raise
such a claim below, despite the administrative judge’s affirmative defenses order,
which instructed him to identify the provisions of law he was contending the
agency violated. IAF, Tab 14 at 15, Tab 41. We decline t o consider such an
argument for the first time on review because the appellant has not shown that it
is based on any new evidence. See Banks , 4 M.S.P.R. at 271 (stating that the
Board will not consider an argument raised for the first time in a petition f or
review absent a showing that it is based on new and material evidence not
previously available despite the party’s due diligence). Regardless, the record
reflects that the appellant’s position of record remained the same. IAF, Tab 9
at 41, Tab 11 at 41.
¶31 Based on the foregoing, we affirm the initial decis ion, sustaining the
appellant’s removal.
19
NOTICE OF APPEAL RIG HTS16
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 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 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).
16 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.
20
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposi tion of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017) . If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
21
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for re view to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
22
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.17 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circui t
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petiti oners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
17 The original statutory provision that provided for judicial rev iew of certain
whistleblower claims by any court of 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.
23
Circuit. The Board neither endorses the services provided by any attorney nor
warrants that any attor ney 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 | CHIN_YOUNG_CHRISTOPHER_R_DC_0752_15_1030_I_1_FINAL_ORDER_1993097.pdf | 2023-01-13 | null | DC-0752 | NP |
3,817 | https://www.mspb.gov/decisions/nonprecedential/CHIN_YOUNG_CHRISTOPHER_R_AT_1221_17_0217_W_1_FINAL_ORDER_1993102.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHRISTOPHER R. CHIN -YOUNG,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.
DOCKET NUMBER
AT-1221 -17-0217 -W-1
DATE: January 13, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher R. Chin -Young , Tallahassee, Florida , pro se.
Philip D. Edwards , Esquire, College Park, Georgia, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. L eavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal ar gument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.11 5). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore we DENY the petition for review. Except as expressly MODIFIED by
this Final Order to clarify the administrative judge’s analysis of the appellant’s
fourth and fifth disclosures, we AFFIRM the initial decision.
¶2 The appellant filed an IRA appeal in which he alleged that the agency took
a number of personnel actions in retaliation for a number of protected disclosures.
The administrative judge, in an initial decision, found that the appellant failed to
make a nonfrivolous allegation of jurisdiction , and he dismissed the appeal for
lack of jurisdiction without a hearing. The appellant petitions for review.
¶3 The Board has jurisdiction over an IRA appeal if the appellant has
exhausted his or her administrative remedies before the Office of Special Counsel
(OSC) and makes nonfrivolous allegat ions that: (1) he engaged in whistleblowing
activity by making a protected disclosure; and (2) the disclosure was a
contributing factor in the agency’s decision to take or fail to take a personnel
action. Salerno v. Department of the Interior , 123 M.S.P.R. 230 , ¶ 5 (201 6). The
appellant raised seven alleged protected disclosures and seven alleged personnel
actions. We adopt the administrative judge’s grouping of these claims in
our analysis.
3
The appellant failed to show that he exhausted his remedies before OSC
concerning some of his alleged protected disclosures.2
¶4 An employee seeking corrective action for whistleblower reprisal under
5 U.S.C. § 1221 is required to seek corrective action from OSC before seeking
corrective action from the Board. Edwards v. Department of the Air Force ,
120 M.S.P.R. 307 , ¶ 15 (2013). This requirement is met when an appellant has
provided OSC with a sufficient basis to pursue an investigation. Chambers v.
Department of Homeland Security , 2022 MSPB 8 , ¶¶ 10-11. 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 his whistlebl owing
activities before the Board than he did to OSC. Id.
¶5 An appellant may demonstrate exhaustion through his initial OSC
complaint, evidence that he amended the original complaint, including but not
limited to OSC’s determination letter and other letters from OSC referencing any
amended allegations, and his written responses to OSC referencing the amended
allegations. He may also establish exhaustion through other sufficiently reliable
evidence, such as an affidavit or a declaration attesting that he raised with OSC
the substance of the facts in the Board appeal. Id. However, the appellant’s
failure to provide any of these in this case means there is little evidence to show
precisely what he raised before OSC. We agree with the administrative judge that
OSC’s c losure letters are the best evidence available in the file as to which claims
the appellant raised to OSC. Initial Appeal File (IAF), Tab 25, Initial Decision
(ID) at 4.
¶6 OSC’s correspondence reveals that the appellant raised two alleged
protected disclo sures, one concerning excessive spending on employee travel
(disclosure 4) and one concerning excessive spending on conferences
(disclosure 5). IAF, Tab 1 at 11-12. OSC makes no mention of the appellant’s
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.
4
remaining alleged protected disclosures, misuse o f classification series 2186;
nepotism and favoritism in hiring within the Planning and Requirements group;
excessive travel funding by a particular named individual; and misuse of work
details to silence and isolate the appellant. As the administrative j udge correctly
determined, because there is no evidence that the appellant raised these four
alleged protected disclosures to OSC, he failed to prove exhaustion as to them.
ID at 5-7; Chambers , 2022 MSPB 8 , ¶¶ 10-11 (finding that, in an IRA appeal, the
Board may c onsider only those charges of whistleblowing that the appellant first
asserted before OSC).
¶7 Turning to disclosures 4 and 5, the administrative judge found that the
appellant did not exhaust his remedies because his allegations lacked detail and
because he failed to inform OSC of the precise ground of his charge of
whistleblowing so as to give OSC a sufficient basis to pursue an investigation that
might lead to corrective action. ID at 4; see Ward v. Merit Systems Protection
Board , 981 F.2d 521 , 526 (Fed. Cir. 1992). He went on to find that the appellant
failed to make a nonfrivolous allegation that disclosure 4 was protected . ID
at 7-8. The administrative judge noted that there were two versions of
disclosure 5 in the record and that one had been raised to OSC and the other had
not. ID at 8 n.4. It appears from OSC’s closure letter that the appellant provided
more informa tion about disclosures 4 and 5 to OSC than he has to the Board. It is
also clear that OSC was able to make at least a cursory investigation into both
disclosures 4 and 5.3 IAF, Tab 1 at 13. Because the appellant provided OSC with
sufficient basis to pur sue an investigation , we find that he proved by preponderant
evidence that he exhausted his administrative remedies before OSC regarding
disclosures 4 and 5.
3 As to disclosure 5, the appellant provided OSC with en ough information that OSC was
able to construct a crude timeline of events. IAF, Tab 1 at 13.
5
The appellant failed to show that he exhausted his remedies before OSC
concerning some of his alleged personnel actions.
¶8 The appellant raised a number of alleged personnel actions in his appeal.
However, the only personnel actions mentioned in the OSC closure letter are an
alleged reduction in grade, pay or band (disclosure 1); and a reassignmen t from a
supervisory to a nonsupervisory position (disclosure 5). We agree with the
administrative judge that the appellant failed to exhaust his administrative
remedies regarding the remaining personnel actions and that the Board therefore
lacks jurisdic tion to consider them.
The appellant failed to make a nonfrivolous allegation that disclosures 4 and 5
were protected.
¶9 As noted above, one element of the test for establishing jurisdiction in an
IRA appeal is that the appellant must make a nonfrivolous allegation that he made
a protected disclosure. Salerno , 123 M.S.P.R. 230 , ¶ 5. A protected disclosure is
defined as a disclosur e of information that the individual reasonably believes
evidences a violation of law, rule, or regulation, gross mismanagement, gross
waste of funds, abuse of authority, or substantial and specific danger to public
health or safety. Tatsch v. Department of the Army , 100 M.S.P.R. 460, ¶ 10
(2005). The test to determine whether a putative whistleblower has a reasonable
belief is an objective one: Whether a disinterested observer, with knowledge of
the essential facts known to and readily ascertainable by the employee, could
reasonably conclude that the agency’s actions evidenced one of these categories
of wrongdoing. Id. The Board will not require, as a basis for its jurisdiction, that
an appellant in an IRA appeal correctly label a category of wrongdoing.
McCorcle v. Department of Agriculture , 98 M.S.P.R. 363 , ¶ 18 (2005). However,
the disclosures must be specific and detailed, not vague allegations of
wrongdoing regarding broad or imprecise matters. Id. A nonfrivolous allegation
is an assertion that, if proven, could establish the matter at issue. Lewis v.
Department of Defense , 123 M.S.P.R. 255, ¶ 7 (2016) . An allegation gene rally
6
will be considered nonfrivolous when, under oath or penalty of perjury, an
individual makes an allegation that is more than conclusory, plausible on its face,
and material to the legal issue in the appeal. Id.
¶10 The appellant’s disclosures 4 and 5 are little more than allegations that the
agency spent too much on travel and on either a conference or a Christmas party.
He makes no specific allegation about how much of each expenditure is
appropriate and how much is excessive. It is not clear whethe r the appellant
believes that the agency is engaging in unnecessary travel, or whether the travel is
appropriate but the costs are not. We agree with the administrative judge, ID
at 7-9, that these are the sort of vague and conclusory allegations that do not rise
to the level of nonfrivolous allegations of a protected disclosure.4
The appellant failed to establish the Board’s jurisdiction over his hostile working
environment claim.
¶11 As the administrative judge correctly stated, the appellant raised the issue
of a hostile working environment both as an alleged protected disclosure and as
an alleged personnel action. ID at 3 n.2. The appellant has provided no evidence ,
however , that he assert ed to OSC that he disclosed a hostile working
environment. The refore, he did not exhaust his remedies as to any disclosure
about a hostile working environment. As to the appellant’s other claim,
allegations of a hostile work environment may constitute a personnel action under
4 Because the appellant did not nonfrivolously allege a protected disclosure, he cannot
meet his jurisdictional burden. See, e.g. , Covarrubias v. Social Secur ity
Administration , 113 M.S.P.R. 583 , ¶ 17 (2010) (explaining that the Board need not
address whether a disclosure was a contrib uting fa ctor to a personnel action when the
appellant did not make a nonfrivolous allegation that she made a protected disclosure),
overruled in part on other grounds by Colbert v. Department of Veterans Affairs ,
121 M.S.P.R. 677 , ¶ 12 n. 5 (2014). Thus, challenges to the administrative judge’s
findings pertaining to the appellant’s allege d personnel actions would not be a basis for
granting the appellant’s petition for review. We nevertheless expand upon the
administrative judge’s analysis of the appellant’s hostile work environment claim to
apply recently issued Board law, which the admi nistrative judge did not have the
benefit of at the time of the initial decision’s issuance.
7
the W histleblower Protection Act only if they meet the statutory criteria of
constitut ing a significant change in duties, responsibi lities, or working conditions .
5 U.S.C. § 2302 (a)(2)(A) (xii) . To amount to a “significant change” under
section 2302(a)(2)(A)(xii), an agency action must have a significant impact on the
overall nature or quality of an employee’s working conditions, responsibilities, or
duties. Skarada v. Department of Veterans Affairs , 2022 MSPB 17, ¶ 15. The
appellant does nothing more than state that he met with a human resources
official about a hostile work environment. Accordingly, we agree with the
administrative judge that, by this, the appellant failed to make a nonfrivolous
allegation that he was subjected to a hostile working environment.
The appellant’s arguments on review do not warrant distur bing the
initial decision.
¶12 The appellant’s arguments on review essentially derive from the
misconception that evidence submitted in his prior appeals is available to and
should be considered by the administrative judge. In a refiled appeal, the Board
informs the parties that documents already in the record need not be resubmitted.
That instruction does not apply in a newly filed appeal with an entirely different
docket number. The administrative judge twice ordered the appellant to submit
evidence and ar gument showing Board jurisdiction, and so the appellant should
have done so rather than assume that the administrative judge would retrieve the
files from the appellant’s earlier cases and search through them for anything that
might be relevant in this cas e. There is nothing from the administrative judge in
this file that could reasonably be interpreted to mean that the appellant could rely
on the records generated in his other cases or that he need not introduce evidence
in this case.
¶13 The appellant furt her contends that the administrative judge’s suspension of
discovery prevented him from obtaining the complete OSC file. P etition for
Review File, Tab 2 at 21-22. He also asserts that the administrative judge should
have ordered OSC to produce its file. Id. at 24. The documents that would show
8
what allegations the appellant raised before OSC are all documents that he would
have generated himself or at least have had in his custody and control at some
point. The form that OSC utilized at the time the ap pellant filed with OSC —
Form 11, “Complaint of Possible Prohibited Personnel Practice or Other
Prohibited Activity” —expressly states on page 2 that complainants should keep
copies of their submissions to OSC. If the appellant chose not to keep copies of
documents he would need later in litigation before the Board, the consequences of
that decision are his responsibility.
¶14 For the foregoing reasons, we find that the administrative judge correctly
dismissed this IRA appeal for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most 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.
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.
9
Please read carefully each of the three main possible choi ces of review
below to decide which one applies to your particular case. If 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 genera l. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
10
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil actio n with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Meri t Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017) . If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for re view to the EEOC by regular U.S. mail, the
address of the EEOC is:
11
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enha ncement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice descri bed in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of c ompetent jurisdiction.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.
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 infor mation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information f or the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CHIN_YOUNG_CHRISTOPHER_R_AT_1221_17_0217_W_1_FINAL_ORDER_1993102.pdf | 2023-01-13 | null | AT-1221 | NP |
3,818 | https://www.mspb.gov/decisions/nonprecedential/CHIN_YOUNG_CHRISTOPHER_R_DC_1221_16_0581_W_1_FINAL_ORDER_1993108.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHRISTOPHER R. CHIN -YOUNG,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DC-1221 -16-0581 -W-1
DATE: January 13, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher R. Chin -Young , Tallahassee, Florida , pro se.
Kyle C. Barrentine , Redstone Arsenal, Alabama, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction .
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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 ini tial 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 cons istent 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 t he record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petition er has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
DISCUSSION OF ARGUME NTS ON REVIEW2
¶2 On May 10, 2016 , the appellant filed an appeal of his removal and the
denial of a within -grade increase (WIGI). Initial Appeal File (IAF), Tab 1 at 2.
He indicate d that he was brin ging an IRA a ppeal and attached a copy of an
April 21, 2016 close -out letter from the Office of Special Counsel (OSC). Id.
at 3, 9-10. The administrative judge issued a show cause order informing the
appellant of his burden of establish ing that he had exhausted his remedies before
OSC. IAF, Tab 3. She noted that , although the appellant had provided a
close -out letter from OSC’s disclosure unit, th e letter did not provide him with
Board appeal rights because the disclosure unit does not investigate allegations of
prohibited personnel practices, which are appealable to the Board. Id. at 4 .
Rather, allegations of p rohibited personnel practices wer e reviewed by OSC’s
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
complaints examining unit.3 Id. Thus, the administrative judge instruc ted the
appellant to file evidence and argument concerning his exhaustion before OSC’s
complaints examining unit. Id. at 5, 10. The appellant did not respond to the
show cause order. Accordingly , the administrative judge issued an initial
decision, dism issing the appeal for lack of jurisdiction. IAF, Tab 5, Initial
Decision (ID) . In particular, she found that notifying OSC’s disclosure unit does
not satisfy the exhaustion requirement under 5 U. S.C. § 1214 (a)(3). ID at 7.
¶3 On review, the appellant contends that he was not properly served with
copies of the plead ings below . Petition for Review (PFR) File, Tab 1 at 5-7. The
record reflects that on his initial appeal form the appellant listed bot h a post
office (P .O.) Box in Roswell, Georgia , for his mailing address as well as a
separat e home address in Alpharetta, Georgia . IAF, Tab 1 at 1. The return
address on his init ial appeal lists the P .O. Box address. Id. at 11. The
acknowledgment order and order to show cause were both sent to the appellant’s
P.O. Box, however, the initial decision was sent to the appellant’ s home address
in Alpharetta, Georgia . IAF, Tabs 2-3, 6. On review, the appellant indicates that
his correct address is hi s home address in Alpharetta, Georgia , but that he used
the P .O. Box in another matter and still receives mail forwarded from that address
to his home address. PFR File, Tab 1 at 5. He also indicates that he received the
agency’s designation of representati ve notice , which was mailed to his P .O. Box.
Id. at 6; IAF, Tab 4 at 5. Thus, it appears the appellant received mail sent to his
P.O. Box.
¶4 Even if the appellant did not receive the show cause order below, the initial
decision was sent to his home address i n Alpharett a, Georgia . IAF, Tab 6.
Further, o n August 13, 2016, the same day that he filed his petition for review,
the appellant registered as an e -filer, which allowed him to access all of the
3 OSC has reorganized its comp onents such that the functions previously performed by
the complaints examining unit are now performed by the investigation and prosecution
division.
4
pleadings below. IAF, Tab 7. Thus, we find that the appel lant received proper
notice of his burden of proving that he exhausted his administrative remedies
before OSC.
¶5 On review, the appellant has failed to provide evidence that he exhausted
his remedies before OSC’s complaints examining unit. Instead, he conti nues to
reference the August 21, 2016 letter from OSC’s disclosure unit. PFR File, Tab 1
at 7. However, as the administrative judge properly found, notifying OSC’s
disclosure unit do es not satisfy the exhaustion requirement under 5 U.S.C.
§ 1214 (a)(3). ID at 7; see Mason v. Department of Homeland Security ,
116 M.S.P.R. 135 , ¶ 16 (2011).
¶6 In addition , as the administrative judge found, even assuming the appellant
had exhausted his remedy with OSC, his claims a ppear to be barred by a
settlement agreement resolving his appeal of his Ja nuary 18, 2011 removal. ID
at 7-8. In a May 19, 2011 settlement agreement resolving that appeal, the
appellant waived all claims arising out of his employment with the agency that
could have been fi led as of the date of the agreement ’s execution . Chin -Young v.
Department of the Army , MSPB Docket No. DC -0752 -11-0394 -I-1, Initial Appeal
File, Tab 21. Thus, to the extent this appeal co ncerns the appellant’s January 1 8,
2011 removal, we find that it is barred by the settlement agreement. The date of
the appellant’s WIGI denial is unclear based on th e record. However, to the
extent it occurred prior to May 19, 2011, such a claim is also barred by the
settlement agreement.
¶7 Finally, t he appellant’s arguments regarding the validit y of the se ttlement
agreement resolving his prior removal appeal are not properly before the Board.
Claims of noncompliance with a settlement agreement must first be addressed in
the regional office as a petition for enforcement. See Shipp v. Department of
Health & Human Services , 107 M.S.P.R. 264 , ¶ 8 (2007) ( stating that a petition
for enforcement must be filed in the regional office th at issued the initial
decision). Further , the Board has previousl y considered and rejected the
5
appellant’s claims that the settlement agreement resolving that appeal is invalid
because it does not contain a waiver of his age discrimination claim under the
Older Workers Benefit Protection Act and because it was the produ ct of coercion
by the administrative judge . See Chin -Young v. Department of the Army , MSPB
Docket No. DC-0752 -11-0394 -C-3, Final Order , ¶¶ 9-12 (Sept. 29, 2016) .
¶8 Accordingly, we affirm the initial decision, dismissing 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 appr opriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on whic h option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immedia tely review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the t hree main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of revi ew rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc .uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an ap peal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neith er endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed th at you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
7
representative in this case, and your representative receives thi s 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. dist rict courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request wit h the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative recei ves this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 o f Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federa l Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
8
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)( A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2 302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 t he court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower r eprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 Feder al Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CHIN_YOUNG_CHRISTOPHER_R_DC_1221_16_0581_W_1_FINAL_ORDER_1993108.pdf | 2023-01-13 | null | DC-1221 | NP |
3,819 | https://www.mspb.gov/decisions/nonprecedential/CHIN_YOUNG_CHRISTOPHER_R_DC_1221_17_0013_W_1_FINAL_ORDER_1993111.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHRISTOPHER R. CHIN -YOUNG,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DC-1221 -17-0013 -W-1
DATE: January 13, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chungsoo Lee , Feasterville, Pennsylvania, for the appellant.
Richard Kane , 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 for lack of jurisdiction . On review, the appellant argues that
the proper responding agency in this appeal is the Department of Defense, the
agency’s pleadings should be stricken for failure to properly designate 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
representative, and the administrative judge erred by finding that he did not prove
that he exhaus ted his remedies before the Office of Special Counsel. 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 in terpretation 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 involv ed 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 sec tion
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. § 1201.11 3(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 a nd the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advi ce on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you shou ld
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 eac h of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information .
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calend ar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petitio n to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 c laimed that 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 discriminati on
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017) . If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for re view to the EEOC by regular U.S. mail, the
address of the EEOC is:
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
Enha ncement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
compete nt jurisdiction.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 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.
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 | CHIN_YOUNG_CHRISTOPHER_R_DC_1221_17_0013_W_1_FINAL_ORDER_1993111.pdf | 2023-01-13 | null | DC-1221 | NP |
3,820 | https://www.mspb.gov/decisions/nonprecedential/CHIN_YOUNG_CHRISTOPHER_R_DC_0752_16_0583_I_1_FINAL_ORDER_1993117.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHRISTOPHER R. CHIN -YOUNG,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DC-0752 -16-0583 -I-1
DATE: January 13, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chungsoo J. Lee , Feasterville, Pennsylvania, for the appellant.
Richard Kane , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDE R
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appell ant’s appeal for lack of jurisdiction. On review, the appellant
argues that the agency violated his veterans ’ preference rights under the Veterans
Employment Opportunities Act of 1998 when it failed to reinstate him to his
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
position of record under 10 U.S.C. § 1586 (c) following his return from an
overseas civilian deployment. 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.
Therefor e, 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 courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and c arefully 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 decid e which one applies to your particular case. If 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 ap pellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.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.
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. d istrict court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to represe ntation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S. C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.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:
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 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 descri bed in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional infor mation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information f or the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CHIN_YOUNG_CHRISTOPHER_R_DC_0752_16_0583_I_1_FINAL_ORDER_1993117.pdf | 2023-01-13 | null | DC-0752 | NP |
3,821 | https://www.mspb.gov/decisions/nonprecedential/FANELLI_PATRICIA_ANNE_PH_1221_13_0019_B_1_FINAL_ORDER_1993151.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PATRICIA ANNE FANELL I,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency .
DOCKET NUMBER
PH-1221 -13-0019 -B-1
DATE: January 13, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Patricia Anne Fanelli , Broomall, Pennsylvania, pro se .
Lida V. Kianoury , 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 remand initial decision,
which dismissed her individual right of action (IRA ) appeal for lack of
jurisdiction . For the reasons discussed below, we GRANT the app ellant’s
petition for review, VACATE the remand initial decision, FIND that the appella nt
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
established jurisdiction over her IRA appeal and proved her prima facie case of
reprisal for a protected disclosure, FIND that the agency failed to prove by clear
and convincing evidence that it would have taken the same action in the absence
of the pro tected d isclosure, and ORDER corrective action .
BACKGROUND
¶2 It is undisputed that the appellant, a Cost Price Analyst with the agency’s
Defense Contract Management Agency (DCMA), was reassigned from her duty
station in Ridley Park, Pennsylvania, to Philadelphia, Pennsylvania, effective
October 20, 2013 . Fanelli v. Department of Defense , MSPB Docket
No. PH-1221 -13-0019 -W-1, Petition for Review (PFR ) File, Tab 7 at 4; Fanelli v.
Department of Defense , MSPB Docket No. PH-1221 -13-0019 -B-1, Remand File
(RF), Tab 1 at 2. The appellant has asserted , and the agency has not disputed,
that, prior to May 2012, the a ppellant disclosed to DCMA in memoranda that a
Government contractor engaged in financial misconduct . RF, Tab 5 at 5. After
the agency failed to respond to the appellant’s memoranda , she filed a qui tam
lawsuit under the False Claims Act on or around May 29, 2012 , alleging that the
Government contractor had charged the Government for equipment that was not
ordered and inflated the prices of other e quipment by hundreds of millions of
dollars . Id. at 5, 11-12. Shortly after she filed the qui tam lawsuit, the agency
threatened to reassign the appellant to a different geographic location . Fanelli v.
Department of Defense , MSPB Docket No. PH-1221 -13-0019-W-1, Initial Appeal
File ( IAF), Tab 1 at 25, Tab 3 at 5.
¶3 Following the threatened reassignment, the appellant filed a complaint with
the Office o f Special Counsel (OSC), wherein she alleged that the agency
threatened to reassign her in reprisal for having filed a qui tam lawsuit . IAF,
Tab 1 at 16-19. After OSC terminated its investigation into her allegations, the
appellant filed an IRA appeal with the Board seeking corrective action . Id. She
did not request a hearing. Id. at 6. While the appeal was pending, the agency
3
notified the appellant that it was moving forward with its plan to reassign her,
effective October 20, 2013. PFR File, Tab 7 at 4.
¶4 The administrative judge issued an initial decision, which denied the
appellant ’s request for corrective action, IAF, Tab 6, Initial Decision (ID) , and
the appellant filed a peti tion for review with the Board. PFR File , Tab 1. The
Board remanded the appeal because the administrative judge adjudicated the
merits without making a finding on Board jurisdiction and without providing the
appellant with explicit information on what is required to establish her bur den of
proof on jurisdiction. RF, Tab 1 at 2-4.
¶5 On remand, the administrative judge issued a show cause order, which
prov ided the parties with explicit notice of the burdens of proof in an IRA appeal,
both at the jurisdictional stage and on the merits. RF, Tab 4. The order
instructed the parties to submit evidence and argument on jurisdiction and the
merits at the same tim e. Id. at 7. Both parties filed responses. RF, Tabs 5-6.
¶6 In the appellant’s response, she asserted that she made a protected
disclosure in her qui tam lawsuit because she alleged multiple violations of the
False Claims Act against a Government contrac tor causing financ ial injury to the
Government. RF, Tab 5 at 4-5. She alleged that a copy of her qui tam lawsuit
was served on the agency, and she submitted limited portions of her qui tam
complaint comprising the case caption, a summary of the action, t he table of
contents, her demand for a jury trial, and a certificate of service. Id. at 5, 8-13.
She further alleged that she filed her qui tam complaint after the agency paid little
or no attention to her detailed memoranda describing numerous incidents of
alleged financial misconduct by the Government contractor. Id. at 5. In the
agency’s response, it d id not appear to challenge that the Board ha s jurisdiction
over the appeal and it concede d that the “[a]ppellant will probably be able to
prove a prima facie case .” RF, Tab 6 at 4. It argue d that it proved by clear and
convincing evidence that the reassignment was warranted based on concerns that
the appellant’s lawsuit created a “potential conflict of interest,” which required
4
that the agency reassign her to limit her interaction with the Government
contractor against whom she filed the lawsuit . Id. The agency asked that the
appeal be dismissed or, alternatively, that corrective action be denied on the
merits. Id. at 6.
¶7 The administrative judge is sued a remand initial decision that dismissed the
appeal for lack of jurisdiction, finding that the appellant failed to nonfrivolously
allege that she made a protected whistleblowing disclosure concerning the
Government c ontractor’s alleged fraud. RF, Tab 7, Remand Initial Decision
(RID ) at 2, 7-9. The administrative judge also found that the appellant failed to
exhaust her administrative remedy before OSC concerning her allegation on
remand that the agency ignored the problems with the contractor that sh e reported
in memoranda prior to filing her lawsuit . RID at 8. According to the
administrative judge, if the appellant had proven exhaustion over this disclosure,
the administrative judge would have concluded that the combination of the
alleged disclosur e and the qui tam lawsuit constituted a protected disclosure. Id.
She stated that even if she were to find jurisdiction over the appeal, the agency
proved by clear and convincing evidence that it would have reassign ed the
appellant due to the conflict of interest she created by filing her lawsuit. RID
at 9.
¶8 The appellant has filed a petition for review disagreeing with the
administrative judge’s findings that she failed to establish jurisdiction over the
disclosure in her qui tam lawsuit and that the a gency proved it would have
reassigned her absent her lawsuit. Fanelli v. Department of Defense , MSPB
Docket No. PH-1221 -13-0019 -B-1, Remand Petition For Review ( RPFR) File,
Tab 1 at 4-5, 6-8. The appellant also argues that she is not required to exhaust
her administrative remedy before OSC concerning her allegation that she
disclosed misconduct by the Government contractor to the agency prior to filing
her qui tam lawsuit. Id. The agency responded in opposition to her petition.
RPFR File, Tab 4.
5
DISCUSSION OF ARGUME NTS ON REVIEW
¶9 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 a personnel action as
defined by 5 U.S.C. § 2302 (a). 5 U.S.C. §§ 1214 (a)(3), 1221 (a),(e)(1) . After
establishing the Board’s jurisdiction in an IRA appeal, the appellant then must
establish a prima facie case of whistleblower retaliation by proving by
preponderant evidence that she made a protect ed disclosure that was a
contributing factor in a personnel action taken against her. Skarada v.
Department of Veterans Affairs , 2022 MSPB 17, ¶ 6. If the appellant proves that
a protected disclosure or activity was a contributing factor in a personnel action
taken against her, the Board must order corrective action unless the agency can
establish by clear and convincing ev idence that it would have taken the same
personnel action in the absence of the disclosure. Id., ¶ 22.
¶10 Here, the appellant did not request a hearing. IAF, Tab 1 at 6. The
administrative judge informed the appellant of her burden of proof on jurisdiction
and informed both parties of their burdens on the merits , and she instructed the
parties to submit evidence pertaining to both jurisdiction and the merits at the
same time . RF, Tab 4 at 1-7. Because the parties were provided a full and fair
opportunity below to develop the merits of this appeal, we may decide the matter
here without remanding the case for further proceedings. Skarada , 2022 MSPB
17, ¶ 21. For the reasons set forth herein, we find that the appellant established
jurisdiction over her appeal and proved by preponderant evidence that her
protected disclosure in her qui tam lawsuit was a contributing factor in her
reassignment . We find that the agency failed to meet its burden to prove by clear
and convincing evidence that it would have taken the same action in the absence
6
of the protected disclosure, and we therefore orde r the agency to take
corrective action.
The appellant proved that she exhausted a protected disclosure with OSC .
¶11 The first element required to establish Board jurisdiction over an IRA
appeal is that the appellant exhausted her administrative remedies before OSC.
Miller v. Federal Deposit Insurance Corporation , 122 M.S.P.R. 3, ¶ 6 (2014),
aff’d per curiam , 626 F. App’x 261 (Fed. Cir. 2015); see 5 U.S.C. §§ 1214 (a)(3),
1221(a). Specifically, under 5 U.S.C. § 1214 (a)(3), an employee is required to
“seek corrective action from [OSC] befo re seeking corrective action from the
Board” through an IRA appeal. The substantive requirements of exhaustion are
met when an appellant has provided OSC with a sufficient basis to pursue an
investigation. Chambers v. Department of Homeland Security , 2022 MSPB 8,
¶ 10. An appellant may demonstrate exhaustion through h er initial OSC
complaint, correspondence with OSC, or other evide nce, such as an affidavit or
declaration attesting that the appellant raised with OSC the substance of the facts
in the Board appeal. Id., ¶ 11. The appellant must prove exhaustion with OSC by
preponderant evidence. 5 U.S.C. § 1214 (a)(3); 5 C.F.R. § 1201.57 (c)(1) .
¶12 In the remand initial decision, t he administrative judge found that the
appella nt filed a complaint with OSC alleging that the agency reassigned her in
reprisal for filing a qui tam lawsuit. RID at 2. The parties do not dispute this on
review and it is supported by the record . IAF, Tab 1 at 16, 28. Although not
expressly stated b y the administrative judge, we find that the appellant satisfied
the exhaustion requirement concerning her disclosure in her qui tam lawsuit that a
Government contractor committed ille gal financial misconduct.
¶13 The appellant also alleged that she made a p rotected disclosure when she
provided the agency with memoranda describing incidents of alleged misconduct
by the Government contractor prior to filing her qui tam lawsuit . RF, Tab 5 at 5.
The administrative judge found that the appellant failed to exhaust this claim
before OSC. RID at 7. The appellant does not challenge this finding on review ,
7
and we discern no basis to disturb it . RPFR File, Tab 1 at 5-6. In an IRA appeal,
the Board ca nnot consider allegations of reprisal for whistleblowing activity that
have not been raised before OSC. Scoggins v. Department of the Army ,
123 M.S.P.R. 592, ¶ 9 (2016). Although we acknowledge that an appellant may
give a more detailed account of her whistleblowing activities before the Board
than she did to OSC, Chambers , 2022 MSPB 8, ¶ 10 (citing Briley v. National
Archives & Records Administration , 236 F.3d 1373 , 1378 (Fed. Cir. 2001)), the
appellant’s correspondence with OSC did not reference, explicitly or implicitly,
additional disclosures beyond her qui tam lawsuit. IAF, Tab 1 at 25-30. Further,
there is no assertion or evidence in the record that OSC initiated inquiries that
might have uncovered other disclosures. Rather, the appellant stated to OSC that
her qui tam lawsuit was the “so le basis” for her reassignment . Id. Accordingly,
we do not believe that OSC had a sufficient basis to investigate additional
disclosures beyond the qui tam lawsuit, and the Board is therefore precluded from
considering the appellant’s allegation that she made a protected disclosure to the
agency in memoranda that predate the filing of her qui tam lawsuit.
¶14 The appellant argues that her reassignment is directly appealable to the
Board and therefore exhaustion of this additional disclosure was not required.
RPFR File, Tab 1 at 5-6. She is mistaken. The appellant’s reassignment, which
she has not claimed resulted in any loss of grade or base pay, cannot be appealed
directly to the Board. Sazinski v. Department of Housing & Urban Development ,
73 M.S.P.R. 682, 685 (1997); see Talley v. Department of the Army , 50 M.S.P.R.
261, 263 (1991 ) (stating that reassignments and transfers generally are not
appealable to the Board); Burkwist v. Department of Transportation , 27 M.S.P.R.
419, 420 (1985 ) (explaining that the Board looks at base pay to determine if an
appellant suffered an appealable reduction in pay) . Accordingly, the appellant
must satisfy the jurisdictional requireme nts for bringing an IRA appeal, including
proof that she exhausted her disclosures with OSC .
8
The disclosure in the appellant’s qui tam laws uit is protected pursuant to 5 U.S.C.
§ 2302 (b)(8) .
¶15 Having found that the appellant exhausted with OSC her claim that the
agency reassigned her to a different geographic location in retaliation for her qui
tam lawsuit , we next consider whether the appellant has nonfrivolously alleged
that her disclosure in the qui tam lawsuit w as protected. For a disclosure to be
protected under 5 U.S.C. § 2302 (b)(8), the employee must have had a reasonable
belief that the disclosure evidenced “(i) a violation of any law, rule, or regulation,
or (ii ) gross mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety.” 5 U.S.C.
§ 2302 (b)(8) (A). The Board has adopted as the test for such a reasonable belief :
whether a “disinterested observer with knowledge of the essential facts known to
and readily ascertainable by the employee [could] reasonably conclude that the
actions of the government evidence ” one of the situations set out in 5 U.S.C.
§ 2302 (b)(8). Sinko v. Department of Agriculture , 102 M.S.P.R. 116, ¶ 15 (2006 )
(quoting Lachance v. White , 174 F.3d 1378 , 1381 (Fed. Cir. 1999)) .2
¶16 The Board has held that disclosures of wrongdoing by a nongovernment
entity may constitute protected disclosures when the Government’s interests and
good name are implicated in the alleged wrongdoing and the employee shows that
she reasonably believed that the information she disclosed evidenced that
wrongdoing. Miller v. Department of Homeland Security , 99 M.S.P.R. 175, ¶ 12
(2005) . The administrative judge considered the portions of the appellant’s qui
tam lawsu it that she submitted on remand and found that her allegation that a
Government contractor was committing fraud, without more, did not include an
allegation that the Govern ment itself was involved in the alleged wrongdoing or
2 Pursuant to the All Circuit Review Act, Pub. L. No. 115-195, 132 Stat. 1510 (2018)
(codified at 5 U.S.C. § 7703 (b)(1)(B)), appellants may file petitions for judicial review
of Board decisions in certain whistleblower reprisal appeals with the U.S. Court of
Appeals for the Federal Circuit or any other circuit court of competent jurisdiction.
9
otherwise implicate d the Government’s interests a nd good name. RID at 7-8.
We disagree.
¶17 The appellant alleged that a Government contractor, acting under the
oversight of the DCMA , illegally inflate d prices for the acquisition of equipment
by hundreds of millions of dollars and that it charged the Government for parts
that it did not purchase or order in violation of the False Claims Act . RF, Tab 5
at 9, 11. She alleged that she had a reasonable be lief that these allegations were
true based on her “extensive analysis” over a significant period of time in her
roles as a cost analyst and auditor . Id. at 5. On its face, the appellant’s allegation
that the Government contractor charged the Government for parts that were not
ordered and inflated prices violates the law. Because it is the agency’s role to
administer contracts for the Department of Defense and other Federal agencies,
any improprieties in the administration of those contracts, particularl y allegations
of illegal price inflation, a cost which would necessarily flow to the taxpayers,
could harm the reputation of the agency and, by extension, the Government as a
whole.3 See Arauz v. Department of Justice , 89 M.S.P.R. 529, ¶ 7 (2001 ) (finding
that the Government’s interests and good name were implicated in allegations of
wrongdoing by a private organization, which performed functions within the
scope of the ag ency’s overall responsibilities and, accordingly, the agency was in
a position to influence or exercise oversight over the orga nization’s performance
of those functions) .
¶18 Further, t he appellant declared , under penalty of perjury , and the agency
did not dispute, that she disclosed these improprieties to DCMA in detailed
3 According to the age ncy’s website, “[t]he Defense Contract Management Agency
provides contract administration services for the Department of Defense, other federal
organizations and international partners, and is an essential part of the acquisition
process from pre -award to sustainment. Every business day, DCMA receives nearly
1,000 new contracts and authorizes more than $650 million in payments to contractors.”
Defense Contract Management Agency, http://www.dcma.mil (last visited Jan. 13,
2023 ).
10
memoranda, to which DCMA “paid little to no attention .” RF, Tab 5 at 3, 5. The
agency has not disputed that the appellant had a reasonable belief that her
disclosure was true, conceding that the appellant “will probably be able to prove a
prima facie case,” and stating the following: “In the course of performing her
duties as a Cost Price Analyst, Appellant found apparent accounting
irregularities, mis charges, and/or other form of illegal activity on the part of [the
Government contractor]. ” RPFR File, Tab 4 at 5, 9. An uncontested declaration
subscribed under penalty of perjury, as is the case here, proves the facts it asserts.
RF, Tab 5 at 3; Tram v. U.S. Postal Service , 120 M.S.P.R. 208, ¶ 8 (2013). We
therefore find that the appellant both nonfrivolously alleged and proved by
preponderant evidence that she reasonably believed she was disclosing a violation
of law, rule, or regulation by a Government contractor, which implicated the
agency’s interests and good name, and therefore her disclosure was protected
pursuant to 5 U.S.C. § 2302 (b)(8).
The appellant’s disclos ure was a contributing factor in her reassignment .
¶19 The last element of jurisdiction requires the appellant to nonfrivolously
allege that her protected disclos ure was a contributing factor in a perso nnel action
taken by the agency. 5 U.S.C. § 1221 (a), (e)(1). The term “contributing factor”
means any disclosure that affects an agency’s decision to threaten, propose, take,
or not take a personnel action regarding the individual who made the disclosure.
5 C.F.R. § 1209.4 (d).
¶20 The appellant asserted that she was subjected to a personnel action when the
agency “transferred” her to a new geogr aphic location approximately 25 miles
from her duty station. RF, Tab 5 at 5. Federal employees m ay seek corrective
action for retaliatory “detail[s], transfer[s], or reassignment[s]” in an IRA appeal.
See 5 U.S.C. § 2302 (a)(2)(A)(iv) (defining “personnel action” to include such
actions). Transfers and reassignments involve a change of position either within
the agency or to another agency. 5 C.F.R. § 210.102 (b)(10), (12), (18); see
Onasch v. Department of Transportation , 63 M.S.P.R. 158 , 162 -63 (1994)
11
(applying the definitions at 5 C.F.R. § 210.102 (b) to determine whether an
appellant suffered a personnel action under 5 U.S.C. § 2302 (a)(2)(A)(iv)).
Although it is unclear whether the appellant’s job duties or job title chang ed when
she was reassigned to Philadelphia, she has asserted under penalty of perjury that
she was subjected to a significant change in working conditions because her
commuting time increased at least three -fold and her wage taxes increased by
3.495%. PFR File, Tab 7 at 3-4. Therefore, regardless of whether the appellant’s
relocation constituted a reassignment or transfer, we find it was a significant
change in her working conditions, which is actionable in an IRA appeal. See
5 U.S.C. § 2302 (a)(2)(A) (xii) (defining a personnel action, in part, as “ any . . .
significant changes in duties, responsibilities, or working conditions”) ; see
Shivaee v. Department of the Navy , 74 M.S.P.R. 383, 388 (1997) (finding that
relocation from within to outside a base, without more, is not a “significant
change” in wo rking conditions) . The agency does not appear to dispute that it
subjected the appellant to a personnel action . RPFR File, Tab 4. Accordingly,
we agree with the administrative judge that the appellant proved , under both the
nonfrivolous allegation and p reponderant evidence standards, that she was
subjected to a personnel action. RID at 3.
¶21 As to contributing factor, the parties agree that the appellant’s filing of the
qui tam lawsuit, which the agency asserts created a conflict of interest, was the
sole factor in the agency’s decision to initiate the reassignment . RF, Tab 5 at 5;
RPFR File, Tab 4 at 5-7. In the initial decision, the administrative judge found
the agency reassigned her not because she revealed improprieties on the part of
the c ontractor, but because she became a plaintiff in a lawsuit against the
contractor . ID at 4-6. Although this finding was not contained in the remand
initial decision, we nonetheles s address it here and find that it is incorrect .
¶22 In Marano v. Department of Justice , 2 F.3d 1137 , 1138 (Fed. Cir. 1993), an
analogous case decided by the U.S. Court of Appeals for the Federal Circuit , the
Federal employee petitioner signed a memorandum to an agency official alleging
12
mismanagement, which prompted an investigation of his office. As a result of
the management problems discovered during the investigation, the employee and
others were reassigned . Id. at 1138-39. In the employee ’s case, his reassignment
was to a new geographic location. Id. He filed an IRA appeal with the Board ,
wherein he alleged that the protected disclosures in his memorand um were a
contributing factor in his reassignment . Id. at 1139. The administrative judge
found that the employee failed to establish contributing factor because the agency
reassigned him as a result of the investigation, which revealed management
problems inside his office, and not because of the content of his memorandum .
Id. The Federal Circuit reversed this finding, holding that an employee need only
“demonstrate . . . that the fact o f, or the content of, the protected disclosure was
one of the factors that tended to affect in any way the personnel action .” Id.
at 1143. It found the employee met his burden because the content of his
disclosure was the reason the agency conducted the investigation which verified
his disclosure and, in turn, led to his reassignment . Id. Applying this reasoning,
which we find persuasive, we find here that the appellant’s qui tam lawsuit gave
the agency the reason for its decision to reassign her, and she has therefore
established contributing factor under both the nonfrivolous alleg ation and
preponderant evidence standards.
The agency failed to show by clear and convincing evidence that it would have
reassigned the appellant in th e absence of her whis tleblowing disclosure .
¶23 Because the appellant met her burden to prove that she made a protected
disclosure that was a contributing factor in the agency’s de cision to take a
personnel action against her, we must 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. 5 U.S.C. § 1221 (e). In determining
whether an agency has shown by clear an d convincing evidence that it would
have taken the personnel action in the absence of the whistleblowing, the Board
generally will consider the following factors: (1 ) the strength of the agency’s
13
evidence in support of its action; (2 ) the existence and st rength 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. See Carr v.
Social Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999) . These
factors are commonly referred to as the Carr factors .
¶24 In the remand initial decision, the administrative judge found , without
elaboration, that even if the appellant established jurisdiction over her IRA
appeal , the agency proved by clear and convincing evidence that it would have
taken the same action in the ab sence of the appellant’s protected disclosure .4 RID
at 9. For the following reasons, we disagree.
¶25 The Board has held that whe n the personnel action at issue is not
disciplinary in nature, the first Carr factor does not apply straightforwardly and it
is appropriate to consider the broad er question of whether the agency had
legitimate reasons for its action . Smith v. Department of the Army , 2022 MSPB 4,
¶ 23. In this case, e vidence regarding whether the agency had legitimate reasons
for reassigning the appellant to a dif ferent geographic location is lacking. The
agency’s counsel stated in various pleadings that the appellant’s qui tam lawsuit
created a “potential conflict of interest,” which required her reassignment to a
different duty stati on in order to limit her inte raction with the Government
contractor who was named in her lawsuit . E.g., IAF, Tab 3 at 7; PFR File, Tab 4
at 7; RPFR File, Tab 4 at 9-10. Statements by a party’s representative are not
evidence , and there is no indication in the record that the agency’ s counsel had
4 In the initial decision , it appears that the administrative judge implicitly analyzed the
first two Carr factors, finding that the agency had strong reasons for reassigning the
appellant because she created a conflict of interest by filing her lawsuit, and that it was
the fact o f filing the lawsuit, and not the content of the disclosure, that caused the
conflict of interest. ID at 4-6. Because this analysis was not repeated in the remand
initial decision, we need not explicitly reverse it, but for the reasons set forth above, w e
disagree with these findings.
14
firsthand knowledge of t he reassignment decision . See Hendricks v. Department
of the Navy , 69 M.S.P.R. 163, 168 (1995). The agency did not submit a
declaration or sworn statement from any individual with firstha nd knowledge of
the appellant’s reassignment .
¶26 Even crediting the agency’s assertion that the appellant’s qui tam lawsuit
created a “potential confli ct of interest,” it has not explained the appellant’s job
duties at her original duty station ; how a conflict of interest arose, or could have
arisen, due to the appellant’s lawsuit; the natu re of the conflict of interest;
whether there were other job duti es that the appellant could have perfo rmed
without a reassignment ; why the agency selected a duty station in Philadelphia,
25 miles away from Ridley Park , for the reassignment ; and whether the appellant
ceased working on matters involving the contractor af ter her reassignment . The
agency has wholly failed to justify its reassignment decision, and therefore, this
factor weighs in favor of the appellant. See Smith , 2022 MSPB 4, ¶¶ 4-5, 23 -26
(finding that the evidentiary record did not support the agency’s explanation for
its decision not to sele ct the appellant for a vacant position, and thus Carr
factor 1 weighed against the agency) . The agency has not put forth any evidence
as to the second or third Carr factors.5 Although the agency does not have an
affirmative burden to produce evidence con cerning each and every Carr factor,
the Board has held than an agency’s failure to present evidence of similarly
situated employees cannot weigh in its favor. Soto v. Department of Veterans
Affairs , 2022 MSPB 6, ¶ 18. In viewing the Carr factors as a whole, the agency
has failed to put forth evidence to meet its burden of showing by clear and
convincing evidence that it would have taken the action in the absence of the
appellant’s protected disclosures.
5 Relevant to Carr factor 2, the appellant stated in a filing to OSC that the agency has a
“policy of transferring all employee -whistleblower complainants.” IAF, Tab 1 at 38.
Although the agency has not disputed this all egation, we afford it little weight because
the appellant did not provide any specific details in support of her assertion.
15
¶27 Based on the foregoing, we find that the appellant is entitled to corrective
action under 5 U.S.C. § 1221 (g)(1 ) in connec tion with her assignment to a
different geographic location .
ORDER
¶28 We ORDER the agency to cancel the appellant’s reassignment to
Philadelphia, Pennsylvania, and reinstate he r to her duty station in Ridley Park,
Pennsylvania, effective October 20, 2013 . 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 .
¶29 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Per sonnel
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.
¶30 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Bo ard’s Order. The appellant, i f 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 Boar d’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
16
fully carried out the Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.1 82(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 payme nts 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 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 t hat issu ed
the initial decision on your appeal .
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T CONSEQUENTIAL AND/ OR
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214 (g) or 1221(g). The regulations ma y
be found at 5 C.F.R. §§ 1201.201 , 1201.202 and 1201.204.
17
In addition, the Whistleblower Protection Enhancement Act of 2012
authorized the award of compensatory damages including inte rest, 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
conseque ntial damages and/or compensatory damages WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your motion with the
office that issu ed the initial decision on your appeal .
NOTICE TO THE PARTIE S
A copy of the decision will be referred to t he Special Counsel “to
investigate and take appropriate act ion under [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302 (b)(8 ) or
section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221 (f)(3). Please note
that while any Special Counsel investigation related to this decision is pending,
“no disciplinary action shall be taken against any employee for any alleged
prohibited activity under investigation or for any related activity without the
approval of the Special Counsel.” 5 U.S.C. § 1214 (f).
NOTICE OF APPEAL RIG HTS6
This is the final decision of the Merit Systems Protection Board in this
matter. 5 C.F.R. § 1201.113 . 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 fi le.
5 U.S.C. § 7703 (b). Although we offer the following summary of available
appeal rights, the Merit Systems Protection Board does not provide legal advice
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in fi nal decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
18
on which option is most appropriate fo r your situation and the rights described
below do not represent a statement of how courts will rule regarding which cases
fall within their jurisdiction. If you wish to seek review of this final decision,
you should immediately review the law applicable to your claims and carefully
follow all filing time limits and requirements. Failure to file within the
applicable time limit may result in the dismissal of your case by you r
chosen forum .
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
19
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, t hen you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC ) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative i n this case,
20
and your representative receives this decision before you do, then you must file
with the EEOC no later 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.7 The court of app eals must receive your petition for
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in 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.
21
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Pr otection Board appellants before the 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.
22
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link 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 empl oyee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leav e
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g) .
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agree d on in Back Pay Cases (settlements, restorations ) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payroll/Action Request ) with clear and concise information
describing what to do in accordance with decision.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accou nting.
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
collec ted (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 dedu ctions. (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 Lea ve
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. | FANELLI_PATRICIA_ANNE_PH_1221_13_0019_B_1_FINAL_ORDER_1993151.pdf | 2023-01-13 | null | PH-1221 | NP |
3,822 | https://www.mspb.gov/decisions/nonprecedential/GAGLIARDO_ANTHONY_DC_0752_15_0117_I_1_FINAL_ORDER_1993165.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANTHONY GAGLIARDO,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.
DOCKET NUMBER
DC-0752 -15-0117 -I-1
DATE: January 13, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael W. Pearson , Esquire, Phoenix, Arizona, for the appellant.
Elisa beth Boyen Fry , 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 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
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
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).
BACKGROUND
¶2 The agency ’s Federal Aviation Admini stration (FAA) removed the appellant
from his Supervisory Aviation Systems Specialist position based on a charge of
Inappropriate Conduct supported by 12 specifications. Initial Appeal File (IAF),
Tab 4 at 1 7-23, Tab 5 at 128 -33. The agency asserted that the appel lant:
(1) misused his position to help a private individual obtain employment on a
subcontract; (2) impermissibly provided advice to a contractor regarding rate
negotiations ; (3) received “VIP” passes to a conference from a contractor that was
providing services to his group ; (4) provided feedback to a contractor in its
drafting of a “Business Case” regarding what the contractor was supposed to be
aware of and who would be the focal po int for conversations ; (5) improperly
involved himself in the hiring process for several vacant positions for which a
contractor had applied; (6) made inappropriate comments of a sexual nature in the
workplace ; (7) informed a coworker that her job would be “on the line” if she did
not get fund ing approved that was necessary for contract approval ; (8) informed a
coworker that he would destroy her if she “sa[id] anything against [him]” ;
(9) informed a coworker on two occasions that he would “destroy him” if he
3
talked about the appellant behind hi s back or went around h im; (10) made
inflammatory statements and spread rumors about the personal lives of
employees , specifically , that two coworkers were having an affair and cheating on
their spouses ; (11) poured alcohol into his coffee cup and drank it while in the
office during duty hours ; and (12) lowered his trousers and exposed his “behind”
to highway traffic from his office window while other s were present . IAF, Tab 5
at 128-30.
¶3 After a hearing, the administrative judge issued an initial decision that
affirmed the agency’s action upon finding that the agency prove d its charge based
on only four of the specifications, namely, specifications (2), (8), (9), and (10) .
IAF, Tab 145, Initial Decision (ID) at 1-27, 43. The administrative judge also
found that the appellant did not pro ve harmful error, a due process violation , or
reprisal for whistleblowing . ID at 27-39. Finally, the administrative judge found
that the penalty of removal was reasonable and promoted the efficiency of the
service . ID at 39-42.
¶4 The appellant has filed a petition for review of the initial decision, the
agency has filed a respon se in opposition, and the appellant has filed a reply to
the agency’s response . Petition for Review (PFR) File, Tabs 4, 14-15.2
ANALYSIS
The ap pellant has not shown that the administrative judge erred in finding that the
agency proved its charge by preponderant evidence .
¶5 The appellant asserts on review that the agency did not prove
specification (2) because the investigator of this misconduct indicated that none
2 The appellant requests that the Board grant oral argument in this case. PFR File,
Tab 4 at 5. In any case that is reopened or reviewed, the Board “may . . . [h]ear oral
arguments.” 5 C.F.R. § 1201.117 (a)(2). We deny the appellant’s request because he
does not explain why he believes that such argument would assist the Board in deciding
his case, see Kravitz v. Dep artment of the Navy , 104 M.S.P.R. 483 , ¶ 4 n.3 (2007), nor
has he shown what evidence or argument he would present at oral argument or how
such oral argument would add to the proceedings, see Lee v. Department of Justice ,
99 M.S.P.R. 256 , ¶ 7 n.4 (2005).
4
of the specifications could be substantiated by preponderant evidence without a
more thorough investigation, including interviews of the appellant and other s.
PFR File, Tab 4 at 28. He also contends that the agency did not pro ve that he
violated 5 C.F.R. § 2635.703 (a), which , he asserts , is the regulation at issue in
this specification , because it did not show that the contractor used the information
and opin ion that the appellant had provided to him . Id. at 28-29.
¶6 Contrary to the appellant’s assertion, the Board need not consider the
evidence an agency had before it when it proposed or effected an action because a
Board appeal is a de novo review of the agen cy’s evidence, and the Board will
decide whether th at evidence supports the charge. See Barrett v. Department of
the Interior , 54 M.S. P.R. 356 , 365 (1992); see also Jackson v. Veterans
Administration , 768 F.2d 1325 , 1329 (Fed. Cir. 1985) (requiring a de novo
determination of the facts in a Board appeal). Thus, to have its action sustained,
the agency must present preponderant evidence before the Board. See 5 U.S.C.
§ 7701 (c)(1)( B); 5 C.F.R. § 1201.56 (b)(1)(ii). The appellant has not , therefore,
shown that the agency needed to show that the proposing and deciding officials
had preponderant evidence in support of the action when they decided to take
their respective actions. In any event, the thoroughness or lack of thoroughness
of an agency investigation of alleged misconduct is not a proper basis for not
sustaining an agency’s charge. Uske v. U.S. Postal Servi ce, 60 M.S.P.R. 544, 550
(1994) , aff’d , 56 F.3d 1375 (Fed. Cir. 1995) .
¶7 Moreover, we disagree with the appellant ’s contention that the agency did
not prove a violation of 5 C.F.R. § 2635.703 (a). Under section 2635.703(a),
which addresses the use of nonpublic information, an employee “shall not engage
in a financial transaction using nonpublic information, nor allow the improper use
of nonpublic information to f urther his own private interest or that of another,
whether thr ough advice or recommendation, or by knowing unauthorized
disclosure. ” Despite the appellant’s contention that the individual to whom
nonpublic information is provided must use the information to prove a violation ,
5
the examples set forth in the regulation show otherwise. Example 1 describes a
Navy employee who advises friends or relatives to purchase stock in a small
corporation that will be awarded a Navy contract. 5 C.F.R. § 2635.703 .
Similarly, Example 2 provides that “[a] General Services Administration
employee involved in evaluating proposals for a construction contract cannot
disclose the terms of a competing proposal to a friend employed by a company
bidding on the work.” Id. These examples do not describe any use of the
nonpublic information by the recipient of the information. In addition, our
reading of the regulation is consistent with the history of the final rule
implementing the regulation , which notes that the purpose of the broad principle
underlying the regulation “is as much to protect nonpublic information as it is [to]
ensure that the employee and others do not profit from the improper disclosure of
such information.” Standards of Ethical Conduct for Employees of the Executive
Branch, 57 Fed. Reg. 35006 , 35031 (Aug. 7, 1992). The Board’s decision in
Suarez v. Department of Housing & Urban Development , 96 M.S.P.R. 213 (2004),
aff’d , 125 F. App’x 1010 (Fed. Cir. 2005), which the appellant cites on review, is
distinguishable from this case . In Suarez , it appears that the agency alleged in its
charge that the recipient of the nonpublic information used that information to
purchase real estate . 96 M.S.P.R. 213 , ¶¶ 2, 9, 13, 17 -19, 26. Here, by contras t,
the agency did not assert in the narrati ve underlying specification (2) that the
individual who received the nonpublic information from the appellant ultimately
used that information to further his own interests . IAF, Tab 5 at 128-29.
¶8 In any event, even if the appellant has correctly interpret ed
section 2635.703(a), he has not established that the agency needed to prove a
violation of that section to sustain its charge . Unlike the agency in Suarez ,
96 M.S.P.R. 213, ¶ 20, which expressly charged Ms. Suarez with violating
section 2635.703(a) , the agency in this case charged the appellant with
“Inappr opriate conduct,” followed by a narrative of the facts underlying
specification (2). IAF, Tab 5 at 128. An agency is not required to affix a label to
6
a charge but may simply describe actions that constitute misbehavior in narrative
form in its charge let ter; if the agency chooses to label an action of alleged
misconduct, then it must prove the elements that make up the legal definition of
the charge, if any. Otero v. U.S. Postal Service , 73 M.S.P.R. 198 , 202 (1997).
Here, the agency’s charge and specification did not allege a violation of
section 2635.703(a) ; thus, the agency did not have to prove a violation of the
elements of section 2635.703(a) . Cf. Otero , 73 M.S.P.R. at 203-04 (explaining
that, because the agency charged the appellant with “improper conduct,” it was
not required to prove a threat under Metz v. Department of the Treasury , 780 F.2d
1001 , 1004 (Fed. Cir. 1986) , even though the narrative description of the
misconduct accompanying the charge described the appellant’s behavior as
threatening). Although the agen cy mentioned section 2635.703(a) later in the
proposal notice, it referenced that regulation in noting that the appellant’s
interactions with contract personnel “created the appearance of violating ethical
standards.” IAF, Tab 5 at 131.
¶9 The appellant furt her contends that the administrative judge improperly
sustained specification (2) based on “a partial writing” because the agency did not
produce in discovery parts of an email thread , which the appellant contends
included communications that would exonera te him. PFR File, Tab 4 at 32 -34.
Although the appellant contends that the missing documents include a longer
response he had written to “discrete questions” raised by a contractor, id. at 33,
he does not describe the nature of h is response or explain how it would tend to
undermine the portions of the emails showing that he impermissibly provided
advice to a contractor regarding rate negotiations . The administrative judge
denied as untimely filed the appellant’s motion to compel this informatio n. IAF,
Tab 47. The appellant has not alleged or shown that the administrative judge
abused his discretion in this regard . See Figueroa v. Department of Homeland
Security , 119 M.S.P.R. 422, ¶ 9 (2013) (holding that the Board will not reverse an
administrative judge’s rulings on discovery matters absent an abuse of
7
discretion) , overruled on other grounds by Singh v. U.S. Postal Ser vice, 2022
MSPB 15 , ¶¶ 9, 11 . Thus, he has shown no basis for disturbing the administrative
judge’s finding that the agency proved specification (2) by preponderant
evidence.
¶10 The appellant also contends that the agency did not prove specification (8)
because, among other things, the witness to this misconduct did not report the
alleged threat to destroy her to anyone in a timely manner. PFR File, Tab 4 at 30.
A petition for review must be supported by specific references to the record.
5 C.F.R. § 1201.114 (b). Here, t he appellant has not identified any evidence in the
record supporting his c ontention that the witness did not report the alleged threat
in a timely manner. In any event, the administrative judge found that this witness
testified in a “sincere straight -forward manner.” ID at 19. The Board must defer
to an administrative judge’s credibility determinations when they are based,
explicitly or implicitly, on observ ing the demeanor of witnesses testifying at a
hearing; the Board may overturn such determinations only when it has
“sufficiently sound” reasons for doing so. Haebe v. Depa rtment of Justice ,
288 F.3d 1288 , 1301 (Fed. Cir. 2002) . The appellant has not established that
there are sufficiently sound reasons for overtu rning the administrative judge’s
credibility determinations regard ing this witness . Under these circumstances, the
appellant has not demonstrated that the administrative judge erred when he found
that the agency proved specification (8).
¶11 Next, t he appella nt asserts that the agency did not prove specification (9)
because the administrative judge found that the witness who alleged that the
appellant engaged in this misconduct was not credible regarding
specification (11) and that this witness was inconsistent as to when the
misconduct underlying specification (9) took place . PFR File, Tab 4 at 29-30.
As set forth above, s pecification (9) alleged that the appellant informed a
coworker that he would “destroy him” if he talked about the appellant behind his
back or went around h im. IAF, Tab 5 at 129. An administrative judge is not
8
required to discredit a witness ’s testimony on all issues or charges once that
testimony is discredited on one or more issues or charges . Rackers v. Department
of Justic e, 79 M.S.P.R. 262, 281 (1998) , aff’d, 194 F.3d 1336 (Fed. Cir. 1999)
(Table) . Thus, the appellant has shown no error in this regard, p articularly given
that the administrative judge provided a persuasive explanation as to why he
found the witness credible as to specification (9) but less credible regarding
specification (11). ID at 20-21, 25 . Moreover, e ven assuming that the w itness
was not clear as to whe ther the appellant made the charged statement before or
after the witness left to serve on a detail at Joint Base Andrews , we find that this
does not undermine his credibility. The agency charged that these types of
statement s were made in May 2012 and March 2013. IAF, Tab 5 at 129. Any
imprecision regarding when the statements were made does not detract from this
witness’ s credibility because he told the investigator and testified at the hearing
that the appellant had made those types of threatening statements numerous times,
i.e., at least six to eight times since 2011 . IAF, Tab 6 at 106 -07; Hearing
Transcript (HT) (June 23, 2015) at 162-66. The witness also testified that he was
not certain he told the investigator that the appellant made the statement before he
left for the detail. HT (June 23, 2015) at 165-66. The investigator’s
memorandum of her interview with th e witness was not signed by the witness or
certified by him as accura te. IAF, Tab 6 at 106 -14. Under these circumstances,
the appellant has not shown that the administrative judge erred when he found
that the agency proved specification (9).
¶12 Finally, t he appellant asserts that the administrative judge should not have
sustained specification (10) because the allegation that he spread a rumor that
certain employees were having an affair was “dated” and inherently improbable.
PFR File, Tab 4 at 31. We disagree. The appellant has not shown that the age of
the rumor precluded the agency from relying on it in its charge of misconduct nor
has he shown t hat it was inherently improbable that the appellant would spread
such a rumor . Moreover, he has not shown that any delay in bringing the action
9
was unreasonable and that he was materially prejudiced by t he delay. See
Kirkland v. Department of Homeland Security , 119 M.S.P.R. 74, ¶¶ 22-23 (2013)
(holding that the defense of stal eness falls under the equitable doctrine of laches,
under which an appellant must prove both that the delay in bringing the action
was unreasonable and that she was materially prejudiced by the delay). Further,
the appellant has not shown that it is inherently imp robable that the subject of the
rumor would bring the matter to the appellant’s attention and ask him to initiate
an investigation into the source of the rumor to “diffuse [his] rumor -spreading.”
ID at 22 -24.
The appellant has not proven ha rmful error .
¶13 Harmful error is error by the agency in the application of its procedures that
is likely to have caused the agency to reach a conclusion different from the one it
would have reached in the absence or cure of the error. 5 C.F.R. § 1201.4 (r).
The appellant asserts that the agency committed harmful error when it reopened a
closed complaint (the April 2013 “Ward” complaint) in violation of FAA
Accountability Board (AB) Order 1110 .125a and used information it discovered
during the course of that reopened investigation to support its action . PFR File,
Tab 4 at 13-14, 16. In addition, he contends that the administrative judge
incorrectly found that the investigation that led to h is removal was based on a
new AB complaint (the November 2013 “Carroll” complaint) , which was entirely
unrelated to the Ward complaint . Id. at 14-15.
¶14 FAA AB Order 1110.125a sets forth procedures for reporting, investigating,
and processing allegations of harassment and other misconduct that creates a
hostile work environment . IAF, Tab 8 at 54. It provides that, based on a
preliminary assessment of the seriousness or sensitivity of the allegation, the
complexity of the case, and the likelihood of determin ing the relevant facts in a
short period of time, the Accountable Official, who is generally a high -level
management official representing the organization employing the individual
against whom an allegation is made , may either address the matter by conduc ting
10
an internal inquiry without requesting a formal investigation or refer the matter to
the Accountability Board Coordinator and request a formal security investigation .
Id. at 59-61, 66. If the Accountable Official determines that a formal
investigati on is not necessary, he or she has 15 workdays from the date the
allegation was first reported in which to address the allegation, i.e., determine the
facts and decide what, if any, action is appropriate and, where such action is
appropriate, initiate that action. Id. at 66. If, within 15 workdays of the date the
allegation was first reported, or the date the incident otherwise became known to
management, it is determined that the facts of the case are sufficiently known to
determin e the appropriate cours e of action (including a determination that no
further action is needed , which appears to have been the case regarding the Ward
complaint ), the management official may initiate action after coordination with
the human resources point of contact (HR POC) . Id. If the Accountable Official
and the HR POC agree on the proposed action, the Accountable Official may
initiate such action and report it to the Accountability Board, stating the
allegation and the facts relevant to determining the appropriateness of the action
taken, if any . IAF, Tab 8 at 67.
¶15 The appellant has not identified, and we have not found, any provision of
FAA AB Order 1110.125a that would prevent the agency from reopening a
complaint after an initial determination has been made during an in ternal inquiry
that no action should be taken . Id. at 54 -70. Although the appellant contends
that an extension of time to complete a formal security investigation must be
requested from the Accountability Board Director and that an Accountable
Official c annot, therefore, begin such an investigation months after a complaint is
received, PFR File, Tab 4 at 14, the appellant has not shown that this case
involved an ongoing investigation in which an extension might have been needed
and reque sted, IAF, Tab 8 a t 68. We therefore agree with the administrative
judge that, although the appellant identified at length the procedures applicable to
the AB -related investigations, “neither the timing of the investigation nor the
11
procedural res ponses by management were o vertly erroneous.” ID at 32 -33.
Thus, regardless of whether the Ward complaint or the Carroll complaint
prompted the investigation that led to the agency’s action, the appellant has
shown no error in the agency’s procedures.
¶16 The appellant also asserts th at the agency committed harmful error when it
“made a determination ” before the investigation was complete in violation of
FAA AB Order 1110.125a , which provides that no “determination ” may be made
about an employee’s conduct until the conclusion of the appropriate inquiry or
investigation . PFR File, Tab 4 at 17. The appellant contends that the agency
made a “determination ” when it removed him , even though the investigator of his
contr act-related misconduct only submitted a memorandum of preliminary results ,
and the investigation had not, therefore, concluded . Id. at 17 -18.
¶17 As set forth above, FAA AB Order 1110.125a provides procedures for
reporting, investigating, and processing alleg ations of harassment and other
misconduct that creates a hostile work environment. IAF, Tab 8 at 54. Altho ugh
the appellant contends that the procedures set forth in the above order also apply
to investigations that do not involve allegations of harassme nt or a hostile work
environment, including the investigation of the ethical and contractual allegations
at issue in this case, PFR File, Tab 4 at 17 n.11, we disagree. The appellant relies
upon FAA Order 1600.38F for this contention, but that document do es not appear
to be included in the record of this case. Even if we were to take official notice
of the version of FAA Order 1600.38F that is publicly available online , see Lovoy
v. Department of Health & Human Services , 94 M.S.P.R. 571 , ¶ 37 (2003) (taking
official notice of pay tables that were published online); 5 C.F.R. § 1201.64 , there
is no indication in that order or its appendix that the FAA will apply the
procedures set forth in FAA AB Order 1110.125a to investigations that do not
involve allegations of harassment and a hostile work environment, see Order
1600.38F (Mar. 15, 2010), https://www.faa.gov/documentLibrary/
media/Order/1600.38F.pdf (last visited January 6, 2022 ).
12
¶18 Even assuming that FAA AB Order 1110.125a did apply to the investigation
in question, its provisions do not support the appellant’s contentions. The
provisions regarding making a “determination” before an investigation is
complete d address how a respondent, i.e., the individual against whom an
allegation i s made, is to be notified of the allegations against him and merely
instruct s supervisors not to make statements that imply judgment or culpability,
assess the merits of the allegations, or make a “determination” about the
respondent’s conduct until the co nclusion of the appropriate inquiry. IAF, Tab 8
at 59, 65. There is no suggestion in FAA AB Order 1110.125a that the
“determination” in question relates to a decision to propose or take disciplinary
action. There also is no indication in the record, and the appellant does not
allege, that a supervisor failed to maintain such neutrality in notif ying him of the
nature of the allegations against him. Thus, we find that he has shown no error in
this regard nor has he shown that the agency likely would have reached a
different result in the absence or cure of such error.
¶19 The appellant further alleges that the agency committed harmful error when
it violated the requirement in FAA AB Order 1110.125a that the Accountable
Official coordinate with the designated HR POC when choosing an investigator ,
deciding whether to conduct an internal inquiry or a formal security investigation,
and engaging in other phases of the Accountability Board process. PFR File,
Tab 4 at 18 -19. The appellant asserts that, although the Accountable Official
conferred with other human resources officials , he did not coordinate with the
HR POC. Id. at 18. The appellant contends that this error resulted in harm
because “having a second set of eyes” on the Accountable Official’s activities
likely would have prevented many of the error s he allegedly committed in
investigatin g and resol ving the matter , includ ing the alleged harmful errors set
forth above . Id. at 19. The appellant also contends that the agency committed
harmful error when it selected investigators who were not Special Agents with the
Office of Civil Aviation Security Operations. Id. at 20 -21.
13
¶20 We agree with the appellant that , under FAA AB Order 1110.125a, during
all phases of the Accounta bility Board process, including the reporting of an
allegation, interviewing a reporting party, and reviewing the facts of the case and
determining whether t o take corrective or disciplinary action , coordination with
the HR POC is required. IAF, Tab 8 at 62. We also agree with the appellant that ,
after the Accountable Official notifies the Accountability Board Coordinator that
an allegation warrants formal i nvestigation, the Accountability Board Coordinator
will refer requests for investigation to the Accountability Board Investigations
Program Manager, “who will assign the allegation to the Office of Civil Aviation
Security Operations or appropriate regional or center Civil Aviation Security
Division.” Id. at 67. Here, even assuming that the agency failed to follow these
requirements, the appellant has not shown that any such error likely caused the
agency to reach a conclusion different from the one it wou ld have reached in the
absence or cure of the error. See Leftridge v. U.S. Postal Service , 56 M.S.P.R.
340, 344 -45 (1993). The appellant does not, for example, identify on review any
testimony from the HR POC as to how that individual would have acted if
coordination had taken place or any testimony or other evidence showing that the
agency likely would have reached a differen t result if the investigation had been
assigned to a Special Agent. Thus, we agree with the administrative judge that
the appellant has not proven his harmful error allegation .
The appellant has not proven a due process violation .
¶21 The appellant asserts th at the agency denied him a meaningful opportunity
to respond to the proposal notice and thereby violated his due process rights,
when it “fail[ed] to disclose materials in its possession that would allow
Petitioner to defend himself against the specificati ons.” PFR File, Tab 4 at 22.
In apparent support of this argument, the appellant contends that the
administrative judge improperly denied as untimely filed his motion to compel
the production of certain documents . Id. at 23-24.
14
¶22 The essential requirement s of constitutional due process for a tenured public
employee are notice of the charges against him, an explanation of the evidence,
and an opportunity for him to present his account of events. Henderson v.
Department of Veterans Affairs , 123 M.S.P.R. 536 , ¶ 11 (2016). Here, as
required by 5 C.F.R. § 752.404 (b)(1), the agency indicated in its proposal notice
that it had attached the material it relied upon to support the proposed action.
IAF, Tab 5 at 132. The proposal notice list ed 26 attachments that included ,
among other things, an investigative report, an investigative summary, multiple
interviews with witnesses, along with relevant emails , and two AB case reports .
Id. at 132 -33. The appellant filed a 17-page reply to the proposal notice that
addressed each of the agency’s 12 specifications in detail , along with 15 exhibits
comprising over 100 additional pages . IAF, Tab 5 at 4-127. The appellant does
not allege on review , and it does not appear from his attorney’s response to the
proposal notice, that he did not understand the agency’s charge. As fou nd by t he
administrative judge below, the appellant has not identified any material actually
considered by the deciding official that he did not receive, other than generally
alleging that the agency “fail[ed] to disclose materials in its possession.” ID
at 33. Thus, we find that he received sufficient notice to enable him to make a
meaningful reply. See Alvarado v. Department of the Air Force , 97 M.S.P.R.
389, ¶¶ 8-13 (2004 ). Moreover, the appellant has shown no error in the denial of
his motion s to compel as untimely filed . E.g., IAF, Tab 21 at 4, 32 , 39, 47, 87,
108; see also 5 C.F.R. § 1201.73 (d)(3) .
The appellant has not shown that the administrative judge erred when he found
that the appellant did not prove that his disclosures were a contributing factor in
the removal action .
¶23 The appellant asserts that, contrary to the findings of the administrative
judge, the deciding official knew of his disclosures before he effected the removal
action. PFR File, Tab 4 at 25. In this regard, the appellant contends that an
investigator uncovered allegations that the deciding official “steered” $3 million
15
to a contractor to do a special study before the requirements of the study had been
identified, and the appellant notified the deciding official in his response to the
proposal notice that he was being retaliated against “due to his knowledge of
widespread fraud, waste, and abuse within the FAA” and that he had “notified his
supervisors and congress ional sources of these issues.” Id. The appellant further
contends that witnesses at the hearing testified that the appellant reported his
“concern” to his superiors, including the deciding official. Id.
¶24 The administrative judge found that the appellant did not claim that he
notified the deciding official of illegal conduct, gross mismanagement, a gross
waste of funds, or any other whistleblowing communication. ID at 38. The
administrative judge also found that the deciding official testified in a pat ient,
calm, and sincere manner and “presented the affect of one seeking to achieve the
right result for the right reason without motive to retaliate.” ID at 38. Thus, the
administrative judge credited the deciding official’s testimony that he did not
know that the appellant made protected disclosures to him or to any other
authority and found that the appellant did not prove by preponderant evidence
that his disclosures were a contributing factor in his removal . ID at 38 -39.
¶25 As set forth above, t he Boar d must defer to an administrative judge’s
credibility determinations when they are based, explicitly or implicitly, on
observ ing the demeanor of witnesses testifying at a hearing; the Board may
overturn such determinations only when it has “sufficiently so und” reasons for
doing so. Haebe , 288 F.3d at 1301 . Here, the administrative judge explicitly
relied upon the deciding official’s demeanor in finding that he was not aware of
the appellant’s disclosures when he took the removal action. The appellant has
not set forth sufficiently sound reasons for overtu rning the administrative judge’s
credibility determination. Although the appellant contends that an investigator
uncovered alleged wrongdoing by the deciding official, this does not establish
that the deciding official was aware of the appellant’s disclos ures. Further, the
appellant’ s general assertion in his response to the proposal notice that he was
16
being retaliate d against due to his “knowledge” of fraud, waste, and abuse, and
that he notified his supervisors and congressional sources of “these issues ,” IAF,
Tab 5 at 6, do es not establish knowledge by the deciding official of any of the
particular disclosures found to be protected in this case. Moreover, the appellant
has not described the testimony in question of the witnesses he refers to on
review nor has he shown that any such testimony establishes a basis for reversing
the administrative judge’s decision. PFR File, Tab 4 at 25. Finally, the appellant
has not identified any agency authority that required the deciding official to
recuse himself fr om deciding the appellant’s case. Id. at 27. Thus, we find that
the appellant has shown no basis for disturbing the administrative judge’s
determination that he did not prove reprisal for whistleblowing.
The appellant has not shown that the administrati ve judge erred when he found
that the penalty of removal was reasonable .
¶26 The appellant asserts that the penalty is unreasonable because the
administrative judge improperly sustained certain specifications. PFR File, Tab 4
at 31-32. As set forth above, ho wever, the appellant has not shown that the
administrative judge erred in sustaining those spe cifications. Thus, he has shown
no basis for disturbing the administrative judge’s findings regarding the penalty.
¶27 Accordingly, we deny the appellant’s petition for review and affirm the
initial decision’s determination to sustain the appellant’s removal.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
3 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.
17
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal 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
18
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposi tion of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you hav e a
representative in 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 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
19
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Was hington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5 SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no ch allenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statu tory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allo ws appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Ac t is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
20
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “ Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circui t, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor wa rrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | GAGLIARDO_ANTHONY_DC_0752_15_0117_I_1_FINAL_ORDER_1993165.pdf | 2023-01-13 | null | DC-0752 | NP |
3,823 | https://www.mspb.gov/decisions/nonprecedential/BROWN_JACQUELINE_D_SF_0752_14_0816_A_1_FINAL_ORDER_1992639.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JACQUELINE D. BROWN,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
SF-0752 -14-0816 -A-1
DATE: January 12, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stephen Goldenzweig, Esquire, Houston, Texas , for the appellant.
Wendy E. Musell, Esquire, Oakland, California , for the appellant .
William R. Fenner , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
Member Leavitt issues a separate dissenting opinion.
FINAL ORDER
¶1 The agency has filed a petition for review of the addendum initial decision,
which awarded the appellant $ 67,105.72 in attorney fees and costs. Generally, we
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
grant petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or th e 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 resultin g 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. See
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 d ecision, which is now the Board’ s final decision. 5 C.F.R.
§ 1201.113 (b).
DISCUSSION OF ARGUME NTS ON REV IEW
¶2 The agency removed the appellant from her Transportation Security
Inspector position based on charges of submitting false reports, failure to follow
directions, and failure to exercise due diligence . Brown v. Department of
Homeland Security , MSPB Dock et No. SF -0752 -14-0816-I-1, Initial Appeal File
(IAF) , Tab 7 at 46-59. The appellant appealed her removal to the Board , and the
administrative judge issued an initial decision finding that the removal penalty
was not within the tolerable limits of reasonableness and mitigat ing the removal
penalty to a demotion to a Trans portation Security Officer position and a 30 -day
suspension . Brown v. Department of Homeland Security , MSPB Docket
No. SF-0752 -14-0816 -I-1, Initial Decision at 42 -45 (June 26, 2015) . The Board
affirmed the initial decision. Brown v. Department of Homeland Security , MSPB
Docket No. SF -0752 -14-0816 -I-1, Final Order (I-1 Final Order) (Jan. 19, 2016).
3
¶3 The appellant thereafter filed a motion for attorney fees and costs seeking
$104,1 73.02 for the two attorneys who represented her in the removal appeal:
Wendy Musell and Stephen Goldenzweig. Brown v. Department of Homeland
Security , MSPB Docket No. SF -0752 -14-0816 -A-1, Attorney Fees File, Tab 1.
The administrative judge issued an add endum initial decision partially grant ing
the motion, finding that the appellant was a prevailing party, an attorney -client
relationship existed, and fees were warranted in the interest of justice. Brown v.
Department of Homeland Security , MSPB Docket No. SF-0752 -14-0816 -A-1,
Addendum Initial Decision (AID) at 4-6 (July 14, 2016). After examining the
reasonableness of the fees requested, however, the administrative judge reduced
the award to $67,105.72. AID at 6 -13.
¶4 The agency h as filed a petition for review challenging the addendum initial
decision . Petition for Review (PFR) File , Tab 1. The appellant has respon ded in
opposition to the petition for review , and the agency has replied. PFR File,
Tabs 3-4.
¶5 To receive an award of attorney fees under 5 U.S.C. § 7701 (g)(1), an
appellant must show that: (1) she was the prevailing party; (2) she incurred
attorney fees pursuant to an existing attorney -client relationship; (3) an award of
attorney fees is warranted in the interest of justice; and (4) the amount of attorney
fees claimed is reasonable. See Caros v. Department of Homeland Security , 122
M.S.P.R. 231 , ¶ 5 (2015). The agency has not challenged the appellant’s
prevailing party status, her having incurred attorney fees pursuant to an existing
attorney -client relationship, or the reasonableness of the award , and we discern no
basis to disturb th ese findings . We accordingly limit our review of the addendum
initial decision to whether an award of attorney fees is warranted in the interest of
justice.
¶6 An award of attorney fees may be warranted under section 7701(g)(1) in the
interest of justice when: (1) the agency engaged in a prohibited personnel
practice; (2) the agency action clearly was without merit or wholly unfounded, or
4
the employee was substantially innocent of the charges; (3) the agency initiated
the action in bad faith; (4) the agency committed gross procedural error; or (5) the
agency knew or should have known that it would not prevail on the merits. See
Allen v. U.S. Postal Service , 2 M.S.P.R. 420 , 434 -35 (1980). An award of
attorney fees need only be premised on one category of entitlement under Allen .
See Payne v. U.S. Postal Service , 79 M.S.P.R. 71 , 72 n.* (1998). The
administrative judge found that an award of attorney fees was warranted in this
case because the a gency knew or should have known that it would not prevail on
the merits . AID at 5-6. As discussed below, we agre e with the administrative
judge’ s findings, and we need not consider whether the appellant established an
entitlement to an award of attorney fees under any of the other Allen categories.
See Payne , 79 M.S.P.R. at 72 n.*.
¶7 An agency ’s penalty selection is part of the merits of a case. See Caryl v.
Department of the Treasury , 57 M.S.P.R. 76 , 78 (1993). When the Board sustains
the charges in an adverse action appeal but mitigates the pe nalty based on
evidence before, or readily available to , the agency at the time it took the action,
an award of attorney fees is warranted in the interest of justice because the
agency knew or should have known that its choice of penalty would not be
upheld. See D el Prete v. U.S. Postal Service , 104 M.S.P.R. 429 , ¶ 7 (2007),
overruled on other grounds by Driscoll v. U.S. Postal Service , 116 M.S.P.R. 662 ,
¶ 11 (2011 ). Penalty mitigation alone, however, does not create a presumption in
favor of satisfaction of any of the Allen factors. Dunn v. Department of Veterans
Affairs , 98 F.3d 1308 , 1313 (Fed. Cir. 1996).
¶8 Here, we agree with the administrative judge’s fin ding that attorney fees are
warranted under the “knew or should have known” category because the Board
sustained the charges, but mitigated the penalty based on evidence before, or
readily available to, the agency at the time it took the action. AID at 5 -6. As the
administrative judge properly found, each of the factors set forth in Douglas v.
Veterans Administration , 5 M.S.P.R. 280, 305 (1981), that warranted mitigation
5
of the penalty in this case were known or readily available to the deciding official
when he made the decision to remove the appellant . AID at 5 (citing Del Prete ,
104 M.S.P.R. 429 , ¶ 11 ( finding that fees were warranted under the fifth Allen
category whe n no new information was introduced at the he aring that was
unavailable to the agency before it removed the appellant) ). Further, as the
administrative judge properly explained , the Board agreed that the deciding
official’s evaluation of the Douglas factors was lacking and that the agency did
not pr ove the reasonableness of the penalty. AID at 5; I-1 Final Order , ¶ 9.
¶9 The Board in Allen described category 5 as including circumstances in
which the agency prepared or presented its case so negligently as to make it a
foregone conclusion that the acti on could not be sustained on the record. Allen , 2
M.S.P.R. at 435 n.37. Similarly, the U.S. Court of Appeals for the Federal
Circuit has held that if the agency never possessed trustworthy, admissible
evidence, or was negligent in its conduct of the inve stigation, then the agency
knew or should have known not to take the action and fees are warranted in the
interest of justice. Yorkshire v. Merit Systems Protection Board , 746 F.2d 1454 ,
1457 (Fed. Cir. 1984) ; see also Dunn , 98 F.3d at 1313 (holding that a negligently
conducted investigation might give rise to an aff irmative finding under Allen
category 5).
¶10 As indicated above, the Board found in its final decision on the merits that
the deciding official’s evaluation of the relevant Douglas factors was lacking
because he “appeared to admit in his testimony that he did not consider, in the
context of the proper penalty for the submitting of false reports charge, the
appellant’s job level, record of experience, length of service, lack of prior
discipline, ability to get along with her coworkers, and any stress, job tensi ons, or
personality issues.” I -1 Final Order , ¶ 9. The Board also agreed with the
administrative judge that the appellant did not engage in a deliberate pattern of
misconduct concerning the falsification charge, but found that the deciding
official faile d to consider this in his Douglas factor analysis. Id., ¶¶ 7, 10. More
6
specifically, t he deciding official testified that he “read” each of the Douglas
factors, Hearing Transcript 2 (HT 2) at 9, 18 -19, and that he reviewed the
proposal and the appellant’ s response to the proposal, id. at 10. He testified that
he “will look” at any mitigating or aggravating factors that may apply, id. at 10 -
11, and that he reviewed the agency’s table of penalties, which he claimed called
for removal for a charge of making a false statement, id. at 13 -14. Nevertheless,
the deciding official also testified that he did not consider the appellant’s job
level and experience in her position because “[h]aving length of service is not an
excuse for falsifying a report,” and “[w]h ether you’re there a short period of time
or whether you’re a tenured or seasoned inspector, if you falsify a report, you
falsify a report.” Id. at 20-21. He testified that a lack of prior discipline would
not be a mitigating factor in this case because “it was a . . . removal ” and the
table of penalties for a proposed removal did not provide for “mitigating action.”
Id. at 21. To the extent that the deciding official was strictly following the
agency’s table of penalties, which indicated that there is only a “recommended”
and “aggravated” penalty range of removal for falsification, with the “mitigated”
penalty range for that offense described as “N/A,” it appears that he did not
understand that the table of penalties also indicated that it “does not rep lace
supervisory judgment for determining appropriate penalties in individual cases,”
and that “[m]anagement officials have the discretion to go outside the ranges
listed in this guide if they determine that circumstances warrant.” IAF, Tab 7 at
383, 392. Under Douglas and the Board ’s caselaw, consistency of the penalty
with any applicable table of penalties is only one of the factors relevant for
consideration in determining the penalty. See, e.g. , Zazueta v. Department of
Justice , 94 M.S.P.R. 493, ¶ 8 (2003) , aff’d , 104 F. App’x 166 (Fed. Cir. 2004) .
¶11 The deciding official further testified that he did not consider the
appellant’s past work record, including length of service, performance in
Oakland, California, ability to get along with coworkers, and dependability “for
the same reasons, falsifying a report,” given that “[n]one of that would have any
7
bearing on falsifying a report.” HT 2 at 21 -22. He testified that “having a stellar
work record is not cause to mitigate falsifying a report .” Id. at 22. All of the
above testimony was elicited on direct examination by the agency’s
representative. In fact, in response to the question from the agency’s
representative, “[d]id you consider any mitigating circumstances?,” the deciding
official testified, “[n]o, I did not.” Id. at 26; see also id. at 35. He testified that
such mitigat ing circumstances as unusual job tensions, personality problems,
mental impairment, harassment, bad faith, malice, or provocation on the part of
others were not considered because they did not “provide cause to falsify a
report.” HT 2 at 27. On cross -examination, the deciding official also testified
that he considered the notoriety of the offense to be an aggravating factor even
though the misconduct was not made known to the public or the airlines. Id. at
74-75. A review of the agency’s proposal and de cision notices show that the
acting officials only considered the appellant’s length of service and lack of prior
discipline as mitigating factors. IAF, Tab 7 at 56, 92; see HT 2 at 39.
¶12 The Board’s Douglas factors have been in effect since 1981 , yet the
deciding official did not apply them in this case. Fees are therefore warranted in
the interest of justice under Allen category 5 because the agency was negligent in
preparing and presenting its case, i.e., the deciding official negligent ly consider ed
the Douglas factors. A negligently conducted Douglas factor analysis, such as
occurred here , fits within Allen category 5’s description of a negligently prepared
or presented case, as well as the court’s references to a negligently conducted
investigation th at warrants a finding that the agency knew or should have know n
that it would not prevail on th e penalty aspect of its burden of proof. Moreover,
this case is distinguishable from Dunn and Adeleke v. Department of Homeland
Security , 551 F. App’x 1003 (Fed . Cir. 2014). In those cases , the court found that
the agency did not make its original judgment negligently or in disregard of
relevant facts. Similarly, Sims v. Department of the Navy , 711 F.2d 1578 , 1579
(Fed. Cir. 1983), is distinguishable because the court held in that case that the
8
agency could not have known, nor should it have known when it took the action
in 1979, that the Board’s 1981 Douglas decision, which required agencies to
demonstrate consistency in the imposition of penalties on employees charged with
similar offenses, would be issued and applied retroactively.
¶13 Although the agency argues that much of the evidence relied on by the
administrative judge in mitigating the penalty was not known to the deciding
official prior to rendering his decision, PFR File, Tab 1 at 11 -20, the standard is
whether the agency knew or should have known that it would not prevail on the
merits , Allen , 2 M.S.P.R. at 434-35. We find that the administrative judge
properly considered the evidence and reasonably concluded that the agency knew
or should have known —based on information readily available to it when it
brought the proceeding —that it would not prevail on the merits . AID at 5-6; see
Del Prete , 104 M.S.P.R. 429 , ¶ 11. Accordingly, we affirm the initial decision.
ORDER
We OR DER the agency to pay attorney fees and costs in the amount of
$28,258 to the appellant’ s former counsel , Wendy Musell, Esquire . The agency
must complete this action no later than 20 days after the date of this decision.
See generally Title 5 of the United States Code, section 1204(a)(2) ( 5 U.S.C.
§ 1204 (a)(2)).
We ORDER the agency to pay attorney fees and costs in the amount of
$38,847.72 to the appellant’ s counsel , Stephen Goldenzweig, Esqu ire. The
agency must complete this action no later than 20 days after the date of this
decision. See generally Title 5 of the United States Code, section 1204(a)(2)
(5 U.S.C. § 1204 (a)(2)).
We al so ORDER the agency to tell the appellant and the attorney promptly
in writing when it believes it has fully carried out the Board’s Order and of the
actions it took to carry out the Board’s Order. We ORDER the appellant and the
attorney to provide all ne cessary information that the agency requests to help it
9
carry out the Board ’s Order. The appellant and the attorney, if not notified,
should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b).
No later than 30 days after the agency tells the appellant or the attorney
that it has fully carried out the Board’s Order, the appellant or the attorney may
file a petition for enforcement with the office that issued the initial decisi on on
this appeal, if the appellant or the attorney believes that the agency did not fully
carry out the Board’s Order. The petition should contain specific reasons why the
appellant or the attorney believes the agency has not fully carried out the Board’ s
Order, and should include the dates and results of any communications with the
agency. See 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG 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
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.
10
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
11
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017) . If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for rev iew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
12
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity 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 appeal s 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 petit ion for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
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.
13
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additio nal information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regardi ng pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact info rmation for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
DISSENTING OPINION O F TRISTAN L. LEAVITT
in
Jacqueline D. Brown v. Department of Homeland Security
MSPB Docket No. SF -0752 -14-0816 -A-1
¶1 The Board “may” award attorney fees to “the prevailing party” when it
“determines that payment by the agency is warranted in the interest of justice.”
5 U.S.C. § 7701 (g)(1). Both of these prerequisites must be fulfilled in order for
fees to be awarded. Sterner v. Department of the Army , 711 F.2d 1563 , 1565 -66
(Fed. Cir.), cert. denied , 462 U.S. 1122 (1983) . An appellant may be deemed to
have prevailed, and thus be eligible for an award of attorney fees, where, as here,
the agency -imposed penalty is mitigated a s a result of her appeal. See id. at 1567 .
This is distinct from whether the appellant is entitled to such an award because
fees are warranted in the interest of justice. Id. at 1565 -67; see also Allen v. U.S.
Postal Service , 2 M.S.P.R. 420 , 428 (1980) (the “interest of justice” standard
cannot be coextensive with the “prevailing party” requirement). As to
entitlement, the question is not whether attorney s should be paid for their success,
but rather, whether the Government must bear the burden of payment . Sims v.
Department of the Navy , 711 F.2d 1578 , 1583 (Fed. Cir. 1983).
¶2 The Board has held that an attorney fee award may be warranted in the
interest of justice under the following circumstances: (1) the agency engaged in a
prohibited personnel practice; (2) the agency action was clearly without merit or
wholly unfounded, or the employee was substantially 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 , 2 M.S.P.R. at 434-35. The majority finds an award
of fees is warranted in this case under Allen category 5 because the agency
2
purportedly knew or should have known that it would not prevail on th e merits.
For the reasons set forth below, I respectfully dissent.
¶3 Allen category 5 “may include circumstances in which the agency prepared
or presented its case so negligently as to make it a foregone conclusion that the
action could not be sustained on the record established before the Board.” Id.
at 435 n.37. In analyzing a request for fees under category 5:
[T]he appropriate procedure is to appraise the agency’s decision to
carry through the action against the employee. If the agency never
possessed trustworthy, admissible evidence, or if the agency was
negligent in its conduct of the investigation, then the agency ‘knew
or should have known’ not to take the action. Attorney’s fees are
then warranted in the interest of justice.
Yorkshire v. Merit Systems Protection Board , 746 F.2d 1454 , 1457 (Fed. Cir.
1984); see Kent v. Office of Personnel Management , 33 M.S.P.R. 361 , 367 (1987)
(“If it is found that the agency was negligent . . . or that it lacked a reasonable
and supportable explanation for its position, then it can be concluded that the
agency knew or should have known that it could not prevail”) (citing Yorkshire ,
746 F.2d at 1457 ).
¶4 The fact that the Board finds a charge is not supporte d by preponderant
evidence does not establish tha t it was negligently brought. Wise v. Merit
Systems Protection Board , 780 F.2d 997, 999 -1000 (Fed. Cir. 1985) (considering
whether it was “unrea sonable for the deciding official to remove petitioner based
on the charges and information available to him at that time ”) (citing
Batchelder v. Department of the Treasury , 14 M.S.P.R. 37, 39 (1982)). Similarly,
penalty mitigation alone does not establish that an award of fees is warranted in
the interest of justice. See Dunn v. Department of Veterans Affairs , 98 F.3d 1308 ,
1313 (Fed. Cir. 1996); Sims , 711 F.2d at 1582 . For instance, in Dunn , the Federal
Circuit considered whether “the agency made its original judgment negligently or
in disregard of relevant facts.” Dunn , 98 F.3d at 1313 . Although the penalty in
Dunn was mitigated, the petitioners were nonetheless found guilty of serious
3
offenses with tragic consequences, and the Federal Circuit agreed that an award
of fees was not warranted under Allen category 5, notwithstanding the arbitrator’s
lengthy disagreement with the agency’s penalty decision. Id. at 1312 -13.
¶5 Here, t he administr ative judge found the agency proved its charge of
submitting false reports by preponderant evidence, sustaining two of the agency’s
seven specificat ions. Brown v. Department of Homeland Security , MSPB Docket
No. SF-0752 -14-0816 -I-1, Initial Decision (ID) at 6-17 (June 26, 2015) . Notably,
the administrative judge concluded the appellant made two false statements on an
official inspection report —in both instances falsely claiming to have provided
airline employees with accurate information concerning securi ty procedures
despite knowing she had actually provided them with incorrect information —for
the purpose of “obtaining supervisory approval on her report and avoiding further
edits or performance counseling.” ID at 7-12. The Board affirmed these
findings, which the appellant did not challenge. See Brown v. Department of
Homeland Security , MSPB Docket No. SF-0752 -14-0816 -I-1, Final Order , ¶ 3 n.2
(Jan. 19, 2016 ).
¶6 The Board has frequently stated that the nature and seriousness of the
offense, and its rela tion to the employee’s duties, position, and responsibility, is
the most important factor in assessing the reasonableness of a penalty. Singh v.
U.S. Postal Service , 2022 MSPB 15 , ¶ 18. It is well -settled that falsification is a
serious offense that affects an employee’s reliability, veracity, trustworthiness,
and ethical conduct. O’Lague v. Department of Veterans Affairs , 123 M.S.P.R.
340, ¶ 20 (2016), aff’d per curiam , 698 F. App’x 1034 (Fed. Cir. 2017) . In my
view, the fact that not all of the falsif ication specifications were sustained does
not substantially diminish the gravity of the sustained charge. All Federal
employees are expected to be trustworthy and to maintain high standards of
integrity. Parsons v. Department of the Air Force , 21 M.S.P.R. 438 , 446 (1984).
Although falsification will not invariably result in removal, as the circumstances
of each individual case must be c onsidered, see id., the Board has found removal
4
to be a reasonable penalty for a first offense of falsification with no prior
discipline. See, e.g. , O’Lague , 123 M.S.P.R. 340 , ¶ 20 (upholding the penalty of
removal for a first offense of falsification with no prior discipline); Wheeler v.
Department of the Army , 47 M.S.P.R. 240 , 246 -47 (1991) (the appellant’s past
work record and lack of disciplinary history were insufficient to warrant
mitigation of the penalty of removal for falsification due to the seriousness of t he
offense); Delessio v. U.S. Postal Service , 33 M.S.P.R. 517 , 521 n.4 (“removal is a
reaso nable penalty for the sustained falsi ficati on charge with or without reference
to prior discipline”), aff’d , 837 F.2d 1096 (Fed. Cir. 1987) (Table) .
¶7 The agency’s action comported with these well -established principles. As a
Transportation Security Inspector, the appellant was responsible for conducting
security inspections, “ensuring security compliance,” and “serv[ing] as a
technical expert and agency point of contact on transportation security
regulations.” Brown v. D epartment of Homeland Security , MSPB Docket
No. SF-0752 -14-0816 -I-1, Initial Appeal File ( IAF), Tab 7 at 420. In light of the
appellant’s “failure to record [her] inspection activity, truthfully,” the deciding
official lost trust in the appellant’s “abili ty to carry out [her] responsibilities as a
Transportation Security Inspector in a trustworthy and credible manner.” Id.
at 55. The deciding official “felt that the serio usness of the offense did not
warrant a lesser penalty than remova l.” Hearing Trans cript 2 at 27. He testified,
“Having length of service is not an excuse for falsifying a report . . . having a
stellar work record is not cause to mitigate falsifying a report . . . . Stress,
tension, personality issues . . . does not justif y falsifying a report.” Id. at 21-22,
27. He also relied on the agency’s Table of Penalties, which indicates removal is
appropriate for falsification, even for a first offense. Id. at 13-14; IAF, Tab 7
at 392.
¶8 Given the seriousness of the sustained falsification s pecifications alone, I
do not believe the agency acted negligently in deciding to remove the appellant.
This is simply not a case where the agency never possessed trustworthy,
5
admissible evidence in support of its chosen penalty. Although the penalty was
ultimately mitigated, the agency had a reasonable, supportable basis for its action
when it was taken. Accordingly, I would find an award of fees is not warranted
in the interest of justice in this matter.
/s/
Tristan L. Leavitt
Member | BROWN_JACQUELINE_D_SF_0752_14_0816_A_1_FINAL_ORDER_1992639.pdf | 2023-01-12 | null | SF-0752 | NP |
3,824 | https://www.mspb.gov/decisions/nonprecedential/KASWATUKA_DINA_S_DA_3330_22_0152_I_1_FINAL_ORDER_1992721.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DINA S. KASWATUKA,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DA-3330 -22-0152 -I-1
DATE: January 12, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Veronica Harte , Esquire, Dallas , Texas, for the appellant .
Kim E. Garcia , Esquire, Irving, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL O RDER
¶1 The appellant has petitioned for review of the March 9, 2022 initial decision
in this appeal. Initial Appeal File, Tab 24 , 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
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
(PFR) File, Tab 1 . For the reasons set forth below, we DISMISS the appeal as
settled.
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT AND RELEASE ” signed and dated by
the appellant on August 10, 2022, and by the agency on August, 15, 2022. PFR
File, Tab 6 at 9. The document prov ides, among other things, for the withdrawal
of the appeal. Id., at 4.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146 ,
149 (1988 ). In addition, before accepting a settlement agreement into the record
for enforcement purposes, the Board must determine whether the agreement is
lawful on its face and whether the parties freely entered into it. See 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 intend for the agreement to be entered into the record
for enforcement b y the Board. PFR File, Tab 6 at 5 . Accordingly, we find that
dismissing the appeal “with prejudice to refiling ” (i.e., the parties normally may
not refile this appeal) is appropriate under these circumstances. In addition, we
find that the agreement is lawful on its face and freely entered into, and we accept
the settlement agreement into the record for enforcemen t purposes.
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
3
NOTI CE TO THE PARTIES OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the off ice 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 an y
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 wil l rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
abou t whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
4
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services p rovided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
5
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
represe ntative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discriminatio n based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/ Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C . § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a repre sentative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 W histleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited per sonnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 yo u submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2 0439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26 , 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained withi n the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for inform ation regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWe bsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | KASWATUKA_DINA_S_DA_3330_22_0152_I_1_FINAL_ORDER_1992721.pdf | 2023-01-12 | null | DA-3330 | NP |
3,825 | https://www.mspb.gov/decisions/nonprecedential/CHROY_PHALLY_DA_3443_22_0044_I_1_FINAL_ORDER_1992727.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PHALLY CHROY,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DA-3443 -22-0044 -I-1
DATE: January 12, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Phally Chroy , Philadelphia, Pennsylvania, pro se.
Kenneth William , 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 petitioned for review of the March 4, 2022 initial decision
in this appeal. Initial Appeal File, Tab 28, 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 distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contri buting to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
(PFR) File, Tab 1 . For the reasons set forth below, we DISMISS the appeal as
settled.
¶2 After the filing of the petition for review, the agency submitted a document
entitled “ NEGOTIATED SETTLEMENT AGREEMENT” signed and dated by the
appellant on June 14, 2022, and by the agency on June 15, 2022. PFR File, Tab 6
at 9. The document provides, a mong other things, for the withdrawal of the
appeal. Id. at 5.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146 ,
149 (1988). In addition, before accepting a settlement agreement into the record
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 pr ior 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 . In addition, we find that the
agreement is lawful on its face and freely entered into, and we accept the
settlement agreement into the record for enforcement purposes. Id. 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.
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
3
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carr ied 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 reas ons 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 d oes not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of thi s final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact tha t forum for more information.
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
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit , you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal 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 applies to you only if you have claimed that 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
5
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1 975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other se curity. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
6
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohi bited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circu it or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B) .
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must 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
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
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contai ned within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CHROY_PHALLY_DA_3443_22_0044_I_1_FINAL_ORDER_1992727.pdf | 2023-01-12 | null | DA-3443 | NP |
3,826 | https://www.mspb.gov/decisions/nonprecedential/BATRA_RAJ_SF_1221_15_0674_W_1_FINAL_ORDER_1992105.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RAJ BATRA,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
SF-1221 -15-0674 -W-1
DATE: January 11, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Raj Batra , Beverly Hills, California, pro se.
Maureen Ney , Esquire, Los Angeles, California, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The ap pellant has filed a petition for review of the initial decision, which
denied his request for corrective action in this individual right of action (IRA)
appeal . 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 jud ges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous a pplication of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affec ted the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. We MODIFY the initial decision to
clarify the appropriate legal standard by which to evaluate the appellant’s
communications with the Office of the Inspector General (OIG) and to
supplement the administrative judge ’s contributing factor analysis. We further
MODIFY the initial decision to supplement the administrative judge’s analysis of
whether the agency proved by clear and convincing evidence that it would have
suspended the appellant in 2013 and 2015 absent his whistleblowing disclosures
and protected activity . We find that the administrative judge correctly
determined that the agency met its burden in this regard and properly denied the
appellant’s request for corrective action . Except as express ly MODIFIED by this
Final Order, we AFFIRM the initial decision.
BACKGROUND
¶2 The relevant background information, as recited in the initial decision, is
generally undisputed. Initial Appeal File (IAF), Tab 30, Initial Decision (ID).
The appellant began working for th e agency in January 1998 as a staff physician.
ID at 2. In this capacity, he divided his time performing clinical work (seeing
patients) and conducting research. Id. The appellant also split his time between
the agency and the University of California at Los Angeles (UCLA), whose
3
receipt of Federal grant funds partially paid his salary. Id. When the appellant
began working at the agency, he was mentored by Dr. S.D. Id.
¶3 Since approximately 2003 -2004, the appellant was no longer identified on
the F ederal grant awarded to UCLA , and he was no longer paid the UCLA portion
of his original salary. ID at 3. The appellant believed that Dr. S.D. stole his
research identity by usurping research for which the appellant was responsible
and receiving millions of dollars of grant funds based on that research. Id. The
appellant made a hotline call to the agency’s OIG in June 2011 concerning
improper funding allocation , among other things . ID at 3 (citing IAF, Tab 1
at 27).
¶4 The appellant also compl ained to v arious agency management officials
about his concerns . ID at 5. For instance, in August 2012, the appellant
complained to the Associate Chief of Staff -Research Service that Dr. S.D.’s
UCLA salary is “complemented” with his agency salary. ID at 5; IAF, Tab 1
at 23-25. He also complained to the agency ’s Office of Research Oversight
(ORO) regarding the “usurpation of [his] work” and the corruption of the “peer
review process ,” but ORO indicated that such complaints wer e against UCLA
personnel and did not constitute research misconduct. ID at 5; IAF, Tab 1 at 26.
¶5 In May 2013, the Chief of the Medicine Service proposed to suspend the
appellant for 14 days based on charges of inappropriate conduct
(three specifications) , disrespectful conduct (two spec ifications) , and failure to
follow instructions (one specification) . ID at 6; IAF, Tab 4 at 152-54. The
individual who heard the appellant’s oral reply, the Assistant Director of the West
Los Angeles office , recommended to the deciding official that the suspension be
imposed and that the appellant be required to participate in anger management
training . ID at 6; IAF, Tab 22 at 10. The Director suspended the appellant for
14 days, effective July 1, 2013. ID at 6; IAF, Tab 4 at 150-51.
¶6 On November 19, 2013, UCLA issued the appellant a notice of exclusion,
which barred him from entering or being on campus based on allegations of
4
“disruptive and aggressive behavior.” ID at 6; IAF, Tab 4 at 144-45. On
January 22, 2014, UCLA lifted the notice of exclu sion after the appellant
participated in a threat assessment and met with one of the UCLA deans. ID at 6;
IAF, Tab 4 at 123.
¶7 On or around July 2014, t he agency convened an Administrative Board of
Investigation (ABI) to investigate allegations that led t o the appellant’s exclusion
from UCLA’s campus . ID at 6; IAF, Tab 4 at 131-34. On July 22, 2014, the ABI
issued a report , which made the following findings: (1) the appellant called
Dr. S.D. a “c ---sucker”; (2) he called various UCLA personnel “c---suckers”;
(3) he made inappropriate physical contact with Dr. H.H.; (4) he verbally
threatened Dr. R.R.; and (5) he falsely accused Dr. P.F. without prior
clarification. ID at 6; IAF, Tab 4 at 131-34. On July 23, 2014, the appellant sent
an email to the agency OIG hotline, in which he appeared to be follow ing up on
his 2011 complaint . ID at 10; IAF, Tab 1 at 31-32.
¶8 On or around October 9, 2014, the Chief of Staff concurred with the ABI’s
findings and forward ed the report to the Chief of the Medicine Service for
consideration of possible discipline. ID at 6; IAF, Tab 4 at 130. On November 7,
2014 , the Chief of the Medicine Service proposed to suspend the appellant for
14 days based on the five specifications of inappropriate conduct that were
sustained by the ABI . ID at 6; IAF, Tab 4 at 127-29.2 The Associate D irector for
Administration/ Operations concurred with the suspension and recommended that
the suspension be imposed. ID at 6-7; IAF, Tab 4 at 60-61. The Acting Director
suspended the appellant for 14 days, effective March 1, 2015. ID at 7; IAF, Tab 4
at 58-59.
¶9 On March 6, 2015, the appellant filed a complaint with the Office of Special
Counsel (OSC) , alleging that the agency suspended him in 2013 and 2015 in
retaliation for his complaint s to agency management officials and OIG . ID at 7;
2 The same Chief of the Medicine Service served as the proposing official on the 2013
and 2015 suspensions.
5
IAF, Tab 1 at 14-32. OSC closed its investigation of his complaint, and he timely
filed a Board appeal. ID at 7; IAF, Tab 1 at 35-36. The administrative judge
found that the appellant established jurisdiction and held a hearing . IAF, Tab 19;
Hearing Transcript (HT).
¶10 In the initial decision, the administrative judge found that the appellant’s
disclosures to OIG in 2011 and 2014 constituted protecte d activity a s defined in
5 U.S.C. § 2309 (b)(9)(C). ID at 7-8, 10-11; IAF, Tab 1 at 27-29, 31 -32. She also
determined that his disclosures to agency management officials , regarding the
theft of his research i dentity3 and Dr. S.D. being paid by the agency for work
when he was not present and working elsewhere, constituted disclosures of a
violation of law, but his remaining disclosures to agency managers lacked
specificity and detail. ID at 11-14. The adminis trative judge further found that
the appellant proved that his correspondence with OIG was a contributing factor
in the 2013 suspension but no t the 2015 suspension. ID at 15-17. She also
concluded that the appellant’s whistleblowing disclosures to agency management
officials were a contributing factor in the 2013 and 2015 suspensions. ID
at 17-18. The administrative judge found , however, that the agency proved by
clear and convincing evidence that it would have suspended the appellant in 2013
and 2015 even if he “had not engaged in whistleblowing.” ID at 18-24.4 She
therefore denied his request for corrective action. ID at 24.
¶11 The appellant has filed a 30-page petitio n for review with more than
300 pages of attachments. Petition for Review (PFR) F ile, Tab 4. The agency
has not filed a response. On review, the appellant essentially challenges the
administrative judge’s findings and conclusions. Id. at 6-35. He also appears to
3 The administrative judge reasonably characterized this assertion a s a theft of
intellectual property. ID at 12.
4 For clarity and consistency in this order , we refer to the appellant’s correspondence to
OIG as protected activity and his disclosures to agency management officials as
whistleblowing disclosures.
6
allege that the agency discriminated against him because of his race. Id.
at 11, 30.
¶12 The appellant also has filed a motion to submit an additional pleading . PFR
File, Tab 6. He proposes to submit the following materials, among other s, to
assist the Board: (1) the UCLA definition of the “In Resident” Joint
Appoint ment; (2) a copy of the “cooperative agreement” between the agency and
UCLA ; and (3) “a dialog [sic] that features how the University and [agency]
research systems are functionally [intertwined] in a manner that creates inherent
conflicts of interest for the [agency] researchers who are not considered part of
the University.” Id. at 3. We deny the motion because we are not persuaded that
such additional documentation will assist us in resolving the legal issues that the
appellant raised on review. See 5 C.F.R. § 1201.115 .
DISCUSSION OF ARGUME NTS ON REVIEW
¶13 The appellant may establish a prima facie case of retaliation for
whistleblowing disclosures and/ or protected activity by proving by pr eponderant
evidence5 that: (1) he made a disclosure described under 5 U.S.C. § 2302 (b)(8) or
engaged in protected activity described under 5 U.S.C. § 2302 (b)(9)(A)(i), (B),
(C), or (D),6 and (2) the whistleblowing disclosure or protected activity was a
contributing factor in the agency’s decision to take a personnel action against
him. 5 U.S.C. § 1221 (e)(1); Webb v. Department of the Interior , 122 M.S.P.R.
248, ¶ 6 (2015). If the appellant establishes a prima fac ie case, then the agency is
given an opportunity to prove, by clear and convincing evidence,7 that it would
have taken the same personnel action s in the absence of the whistleblowing
5 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).
6 Section 2302(b)(9)(A), (B), and (D) are not implicated by the facts of this appeal.
7 Clear and convincing evidence “is that measure or degree of proof that produces in the
mind of the trier of fact a firm belief as to the allegations sought to be established.”
5 C.F.R. § 1209.4 (e).
7
disclosure or protected activity . 5 U.S.C. § 1221 (e)(1) -(2); Webb , 122 M.S.P.R.
248, ¶ 16.
We agree with the administrative judge that the appellant made whistleblowing
disclosure s and engaged in protected activity.
¶14 The appellant does not challenge the adminis trative judge’s conclusion that
he engaged in protected activity when he communicated with OIG and he made
whistleblowing disclosures to agency management officials regarding the theft of
his research identity and Dr. S.D. being paid by the agency for work when he
was not present and working elsewhere. We affirm those conclusions herein.
¶15 The appellant challenges on review the administrative judge’s conclusion
that the following three disclosures to agency management officials lacked
specificity and detail and were not protected under 5 U.S.C. § 2302 (b)(8) :
(1) that agency funds and benefits were being diverted to UCLA; (2) that Dr. S.D.
was diverting agency resources to UCLA; and (3) that Dr. S.D. was taking credit
at UCLA for work performed at the agency. PFR File, Tab 4 at 14-19; ID
at 11-13. In reaching this con clusion , the administrative ju dge noted, among
other things, that the appellant failed to provide sufficient factual context for
these allegations, the agency and UCLA have an arrangement to share resources,
and the appellant did not identify any law, rule , or regulation that the agency
violated, nor did these allegations clearly implicate an identifiable violation of
law, rule, or regulation . ID at 12-13. She further found that t hese allegations
did not constitute preponderant evidence of an abuse of authority, gross
mismanagement , or a gross waste of funds by agency officials . ID at 13.8
8 In the initial decision, the administrative judge made two references to the appellant’s
burden to make nonfrivolous allegations. ID at 8-9, 13 -14. We assume that these
references were misstatements because she previously determined that the appellant
satisfied his burden to make nonfrivolous allegations of Board jurisdiction and a
hearing was held, I AF, Tab 19, and she correctly noted the proper burden of proof at the
merit s stage, ID at 9; see, e.g., Panter v. Department of the Air Force , 22 M.S.P.R. 281 ,
282 (1984) (explaining that an adjudicatory error that is not prejudicial to the
appellant’s substantive rights provides no basis for reversal of the initial decision).
8
¶16 To remedy these deficiencies, the appellant discusses on review his research
expertise, the nature of the cooperative research agreement between the agency
and UCL A, and the impact of the agency’s decision to exclude him from various
funding applications (including the disparity of salary support between him and
Dr. S.D. and the professional opportunities that he was denied) . PFR File, Tab 4
at 14-18. We have cons idered this information as well as his assertion that
because Dr. S.D. was on various “regulatory panels with falsified credentials (that
belonged to [the appellant] ),” he was able to steer “many additional hundreds of
millions of dollars . . . towards dea d-end medical research projects , and/or killed
others (like [the appellant’s]) that . . . had significant promise,” which in turn
“harmed the American public.” Id. at 18. However, we are not persuaded that
this additional information provides sufficient detail to constitute a disclosure of
a violation of law, rule, or regulation or any other category protected by 5 U.S.C.
§ 2302 (b)(8). Therefore, we affirm the administrative judge’s conclusion th at
these disclosures are not protected.
¶17 Although not raised by the appellant on review, we modify the initial
decision to clarify the proper analytical standard by which to evaluate the
appellant’s communication s with OIG. The administrative judge ackno wledged
that the appellant’s communications to OIG are covered by 5 U.S.C.
§ 2302 (b)(9)(C), which makes it a prohibited personnel practice to take or fail to
take a personnel action against an empl oyee because of “disclosing information to
the Inspector General of an agency.” ID at 10-11. However, in the initial
decision, she also referenced the standard for general retaliation claims. ID
at 7-8, 10-11 (citing Murry v. General Services Administra tion, 93 M.S.P.R. 560,
¶ 6 (2003), for the proposition that the appellant must show that he engaged in
protected activity, the accused official knew of the protected activity, the adverse
employment action could have been retaliation under the circumstances, and there
was a genuine nexus between the alleged retaliation and the adverse employment
action ). In Alarid v. Departme nt of the Army , 122 M.S.P.R. 600, ¶ 15 (2015), the
9
Board clarified that the standard for general retaliation claims is inapplicab le to
claims that are subject to the burden -shifting framework set forth in 5 U.S.C.
§ 1221 (e). As noted above, the appellant’s communications to OIG are covered
by 5 U.S.C. § 2302 (b)(9)(C), and they are subject to the burden -shifting
framework set forth in 5 U.S.C. § 1221 (e). See 5 U.S.C. § 1221 (e)(1) -(2). We
therefore modify the administrative judge’s analysis , and we find that the
appellant’s communication s with OIG in 2011 and 2014 constitute protected
activity under section 2302(b)(9)(C).9
We modify the administrative judge’s contributing factor analysis , but we agree
with her conclusion that the appellant proved by preponderant evidence that his
whistleblowing disclosures and /or protected activity was a contributing factor in
the agency’s decision to suspend him in 2013 and 2015 .
¶18 One way of proving that the appellant’s whistleblowing disclosure s and/or
protected activity was a contributing factor in the personnel action is the
“knowledge/timing test.” Alarid , 122 M.S.P.R. 600, ¶ 13 (citing Shibuya v.
Department of Agriculture , 119 M.S.P.R. 537, ¶ 22 (2013)). The
knowledge/timing test allows an employee to demonstrate that the whistleblowing
disclosure and/ or protected activity was a contributing factor in a personn el
action through circumstantial evidence, such as evidence that the official taking
9 On review, t he appellant indicates that he “reach[ed] out to [a] Congressional
representative,” and he includes correspondence to various Congressional
representatives . PFR File, Tab 4 at 22, 159-60, 169 -70. He also provides evidence that
he filed with OSC a whistleblowing disclosure in late 2013 or early 2014, PFR File,
Tab 4 at 150 -152, as well as an earlier prohibited personnel practice complaint in 2013,
for which he received a preliminary closure letter on September 6, 2013, PFR File,
Tab 4 at 146-49. He did not provide this information below, and 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 r ecord was closed despite the
party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980).
The appellant has not made such a showing here. Moreover, this additional information
would not change our analysis b ased on our finding that, although the appellant made
whistleblowing disclosures and engaged in protected activity, as the administrative
judge found, the agency proved by clear and convincing evidence that it would have
suspended the appellant in 2013 and 2015 absent his whistleblowing disclosures and
protected activity.
10
the personnel action knew of the whistleblowing disclosure and/or protected
activity and that the personnel action occurred within a period of time such that a
reasonable person could conclude that the whistleblowing disclosure and/or
protected activity was a contributing factor in the personnel action. Alarid ,
122 M.S.P.R. 600, ¶ 13; Carey v. Department of Veterans Affairs , 93 M.S.P.R.
676, ¶ 11 (2003) ; see 5 U.S.C. § 1221 (e)(1) .
¶19 The administrative judge found that the appellant proved tha t his
whistleblowing disclosures and protected activity were contributing factor s in the
agency’s decision to su spend him in 2013 and 2015. ID at 15-18. The
administrative judge found that the concurring official was the only individual
involved in the 2013 suspension that had knowledge of his communications with
OIG , but he only knew about the appellant’s general complaints regarding
Dr. S.D. and research transgressions . ID at 15-18. Regarding the 2015
suspension, the administrative judge found that the proposing official and the
Chief of Staff who concurred in the ABI’s recommendation had some knowledge
that the appellant disclosed to agency management officials that Dr. S.D. stole his
research identity and/or was improperly paid for time worked at the agency . ID
at 17.10
10 The administrative judge’s contributing factor analysis is confusing due , in part, to
the lack of clarity in the record regarding to whom , and when , the appellant made
whistleblowing disclosures and when the various agency officials involved in the 2013
and 2015 suspensions had knowledge of such disclosures. E.g., ID at 17 (noting that it
was “not entirely clear ” when the proposing official had knowledge of the appellant’s
disclosures to agency management officials). The administrative judge’s confusion is
somewhat understandable because the appellant’s submissions do not clearly articulate
such information. For instance, he included with his OSC complaint his
correspondence with the Associate Chief of Staff -Research Service and the agency’s
Office of Research Oversight as discussed supra ¶ 4. However, it appears that the
appellan t informed other agency management officials of his concerns regarding theft
of intellectual property and improper payments to Dr. S.D. E.g., IAF, Tab 17 at 30-31
(the Chief of the Medicine Service acknowledged in his deposition that he knew of the
appell ant’s allegation that Dr. S.D. stole his intellectual property and received credit for
his work), Tab 22 at 64 (stating in a February 1, 2012 email to the Chief of Staff that
his “contributions have been usurped and misappropriated” and his “research identity
11
¶20 We modify the initial decision to find that additional agency officials
involved in the 2013 and 2015 suspension actions had knowledge of the
appellant’s whistleblowing disclosures and/or protected activity, but we agree
with the administrative judge’s overall conclusion that the appellant proved
contributing factor for each suspension . For instance, w e have considered the
appellant’s assertion that the proposing official knew about his complaints to OIG
and agency managers . PFR File, Tab 4 at 12, 19. On review, the appellant
includes a May 24, 2013 email, which he sent to the proposing off icial and the
Chief of Staff , who concurred with the ABI recommendation , among others . Id.
at 60. Included with t his email was his response to the 2013 notice of proposed
suspension , which was already in the record below . Id. at 61-66; IAF, Tab 22
at 36-41. In his response to the notice of proposed suspension , he stated that he
“began raising concerns with Federal Agencies (see 2011 VA -[Tech Transfer
Office (TTO) ] and VA -OIG communications).”11 IAF, Tab 22 at 38. The
proposing official testified that he did not know that the appellant went to OIG
until June or July 2015 . HT at 79-80, 89 (testimony of G.B.) . However , as one
of the recipients of the appellant’s May 24, 2013 email, we find that he had
knowledge of the appellant’s communication with OIG on or around this date .
We also conclude that the Chief of Staff, as a recipient of the May 24, 2013
email, had knowledge of the appellant’s communications with OIG. We modify
the initial decision accordingly. The record also reflects that the Chief of Staff
stolen ”); HT at 142 ( testimony of the Chief of Staff acknowledging that the appellant
raised the issue of whether Dr. S.D. was committing fraud by getting paid by the agency
when he was not working at the agency). We cannot discern whe ther such
communications are intended to constitute additional whistleblowing disclosures in this
IRA appeal . The lack of clarity in the record regarding to whom and when the appellant
made whistleblowing disclosures does not require further development o f the record
because the existing voluminous record is sufficient to address the numerous arguments
raised by the appellant on review.
11 According to the appellant, the TTO is the agency’s Office of Intellectual Property.
HT at 21 (testimony of the appe llant) .
12
concurred with the ABI’s findings on or around October 9, 2014, and the Chief of
the Medicine Service proposed the second suspension on November 17, 2014.
IAF, Tab 4 at 127. The Board has held that a personnel action taken within
approximately 1 -2 years of the whistleblowing disclosure (s) or protected activity
satisfies the knowledge/timing test. Mastrullo v. Department of Labor ,
123 M.S.P.R. 110, ¶ 21 (2015). We further modify the initial decision to find that
the appellant’s communication with OIG was a contributing factor in the decision
to propose the 2015 suspension.12
¶21 The appellant further contends that the concurring officials on the 2013 and
2015 suspensions did not appreciate the magnitude of the issues that he was
raising in his responses to the proposed agency actions . PFR File, Tab 4 at 21.
We unders tand this argument to mean that he informed these of ficials through his
oral and written replies that he had made disclosures to agency management
officials , but they failed to recognize the context of his assertions .
¶22 The concurring official on the 2013 suspension testified that he had no
knowledge of any complaints that the appellant made to agency management
officials . HT at 120 (testimony of C.S.) . However, he acknowledged that he read
the appellant’s response to the notice of proposed suspension, which stated the
appellant’s belief that Dr. S.D. inte nded “to s teal [his] intellectual property by
claiming it as his own,” that funds were “absconded” from his accounts and
redistributed elsewhere to Dr. S.D.’s benefit, and that he began raising concerns
with “Federal Agencies (see [agency] -TTO a nd [agency] -OIG communications). ”
Id. at 120-24; IAF, Tab 22 at 37-38. The appellant’s response further indicated
that he had raised with the proposing official and other agency management
officials issues concerning his research environment and laboratory privileges ,
and he stated that the proposing official’s actions were retaliatory. IAF, Tab 22
12 We are not persuaded that the proposing official had any knowledge of the
appellant’s communications with OIG prior to his decision to propose the
2013 suspension.
13
at 40. Viewing the appellant’s response as a whole, w e find that the concurring
official had some knowledge of the appellant’s substantive whistleblowing
disclo sures to agency management officials . We modify the initial decision
accordingly. Here, too, the 1-month span of time between the appellant’s
May 24, 2013 response to the notice of proposed suspension and the June 20,
2013 recommendation that the proposa l should be sustained , IAF, Tab 22 at 10,
was sufficiently short to satisfy the timing component of the knowledge/timing
test. See DeLeonardo v. Equal Employment Opportunity Commission ,
103 M.S.P.R. 301, ¶ 10 (2006) (finding that a performance evalua tion issued
1 month after a disclosure was made satisfie d the knowledge/timing test).
¶23 By contrast , we are not persuaded that the concurring official on the 2015
suspension had any knowledge of the appellant’s whistleblowing disclosures or
protected activity. Indeed, t he concurring official on the 2015 suspension denied
having any such knowledge , and the document ary evidence supports her
testimony . HT at 162-63 (testimony of S.S.). Importantly , in the appellant’s
written response to the proposed suspension, he discussed his personal conflicts
with Dr. S.D. and the proposing official and his feeling that he was “ betrayed” by
Dr. S.D., but he does not at any time discuss the substance of his whistleblowing
disclosures or his complaints to OIG. IAF, Tab 4 at 62-126.
¶24 Because we conclude that the appellant satisfied his prima facie burden to
show that his whistlebl owing disclosures and/or protected activity was a
contributing factor in the agency’s decision to suspend him in 2013 and 2015, we
now turn to whether the agency proved by clear and convincing evidence that it
would have suspended him absent his whistleblo wing disclosures or
protected activity.
14
We agree with the administrative judge that the agency proved by clear and
convincing evidence that it would have suspended the appellant in 2013 and 2015
absent his whistleblowing disclosure s or protected activity.13
¶25 In determining whether an agency has shown by clear and convincing
evidence that it would have taken the same personnel action absen t
whistleblowing disclosures and/or protected activity , the Board will consider the
strength of the agency’s ev idence in support of its action, the existence and
strength of any motive to retaliate on the part of the agency officials who were
involved in the decision, and any evidence that the agency takes similar actions
against employees who are not whistleblower s or who did not engage in protected
activity but who ar e otherwise similarly situated. See Carr v. Social Security
Administration , 185 F.3d 13 18, 1323 (Fed. Cir. 1999); Alarid , 122 M.S.P.R. 600,
¶ 14.
¶26 The administrative judge assessed the relevant evidence, made credib ility
determinations, and concluded that the agency had “legitimate reasons ” to
suspend the appellant in 2013 and 2015. ID at 19-23. Regarding the agency’s
motive to retaliate, the administrative judge acknowledged the appellant’s
assertion that the char ges were fabricated because the Chief of the Medicine
Service and other agency management officials “favored” Dr. S.D. , but she
concluded that this argument was not persuasive . ID at 23-24. The
admi nistrative judge noted that the third Carr factor was not significant because
the record did not contain any evidence to show that the agency took similar
actions against employees who did not make whistleblowing disclosures or
13 In the administrative judge ’s clear and convincing analysis, she stated that she would
“accept as true that the appellant’s protected disclosures were a contributing factor in
the decision to remove him.” ID at 18. We assume that this statement was a
typographical error because sh e previously f ound, as noted above, that the appellant
proved by preponderant evidence he made whistleblowing disclosures and engaged in
protected activity and such disclosures and activity were a contributing factor in the
agency’s decision to impose the 2013 and 2015 suspension s. ID at 10-18.
15
did not engage in protected activity but who were otherwi se similarly situated.
ID at 24 & n.5 .14
¶27 The appellant admit ted to most of the misconduct underlying the 2013
suspension , including calling another employee “inept,” failing to meet with the
Chief of the Medicine Service as directed, and , during a different meeting with
the Chief of the Medicine Service , raising his voice , pounding his fist on the
table, and slamming the door behind him . E.g., IAF, Tab 22 at 36-41; HT
at 54-56 (testimony of the appellant) . He contends on review, however, that the
Chief of the Medicine Servi ce (who was also the proposing official ) provoked
him by calling him a liar and dismissing his complaint with the UCLA Academic
Senate regarding his allegations against Dr. S.D. PFR File, Tab 4 at 14. Even if
the appellant’s allegation s of provocation were true, it would not change our view
of the strength of the agency’s evidence concerning the specifications that
involved other employees , and they do not explain his otherwise inappropriate
and unprofessional behavior described in the specifications invo lving the Chief of
the Medicine Service .
¶28 Regarding the 2015 suspension, t he appellant asserts on review that the
underlying specifications “largely occurred off -site in 2013.” PFR File, Tab 4
at 23. The administrative judge addressed this argument in the initial decision,
noting that the delay was due to the agency’s decision to convene an independent
ABI, which sustained the misconduct and provided written recommendations in
July 2014. ID at 22-23; IAF, Tab 4 at 131-34. The appellant has not persuaded
us that the administrative judge erred when she concluded that the delay did not
harm him or alter the facts surrounding the alleged misconduct. ID at 22-23.
¶29 We have considered the appellant’s arguments regarding some of the
specifications of the inappropriate conduct charge , but we find that a different
14 The administrative judge acknowledged that one witness testified that other
physicians who were not whistleblowers have been suspended; however, she noted that
the particular misconduct was not identified . ID at 24 & n.5 .
16
outcome is not warranted . For instance, t he appellant argues on review that his
use of vulgar language to describe Dr. S.D. and UCLA personnel was “jovial and
impulsive” and not out of anger. PFR File, Tab 4 at 24 (emphasis omitted). This
argument is inconsistent with his admission that it was not appropriate to use such
vulgarity in the agency hospital and that he viewed Dr. S.D. “in this light .” IAF,
Tab 4 at 69-70; PFR File, Tab 4 at 24 (emphasis omitted). Additionally, t he
appellant asserts that he never hit Dr. H.H., PFR File, Tab 4 at 24, but he
acknowledged in his response to the notice of proposed suspension that he “ patted
[Dr. H.H.’s] shoulder ,” IAF, Tab 4 at 70. The appellant’s version of events is
contradicted by an email written by Dr. H.H. on the same day as the incident in
question , which described that the appellant hit him “very hard .” Id. at 137. The
appellant admitted below that he had a confrontation with Dr. R.R. because he
reacted to Dr. R.R.’s “open disrespect[]” for him in front of faculty and students .
Id. at 71, 126. Additionally , on review, he admits that he “informed [ Dr. R.R.] in
measured tones that if he disrespected [the appellant] again in a public forum, that
there would be consequences.” PFR File, Tab 4 at 24 (emphasis in original).
Given the appellant’s admissions , we agree with the administrative judge that the
agency’s evidence to supp ort the 2013 and 2015 suspensions was very strong.
¶30 Because we have modified the initial decision to find that additional
individuals had knowledge of the appellant’s whistleblowing disclosures and/or
protected activity, we also modify the administrative judge’s evaluation of the
second Carr factor, concerning the agency’s motive to retaliate. The appellant
asserts on review that he was “raising very significant issues regarding executive
integrity and fiscal impropriety that directly implicated high leve l [agency] and
[UCLA] officials [and accused them] of incompetence and corruption.” Id. at 13.
We agree. Given the serious nature of the appellant’s allegations to agency
management officials and OIG , coupled with the positions of authority occupied
by the individuals who were involved in the decision -making process concerning
17
the two suspensions,15 we find that this Carr factor favors the appellant. See,
e.g., Whitmore v. Department of Labor , 680 F.3d 1353 , 1370 (Fed. Cir. 2012)
(“Those responsible for the agency’s performance overall may well be motivated
to retaliate even if they are not directly implicated by the disclosures, and even if
they do not know the whistleblower personally, as the criticism reflects on them
in their capacities as managers and employees.”).
¶31 The appellant also asserts that the decision to convene the ABI was
improper , the ABI was presented with a “pre-determined narrative ,” it did not
properly consider the evidence before it , and its conclusion that his research
activities should be curtailed is inconsistent with the charged offenses . PFR File,
Tab 4 at 26-27. We find t hese arguments unavailing. Indeed, there is no
persuasive evidence that any agency management official with knowledge of his
whistleblowing disclosure s and/ or protected activity influenced anyone on the
ABI, nor is there any evidence that any ABI members acted in retaliation for his
whistleblowing disclosures and/or protected activity.
¶32 Regarding the third Carr factor, the appellant contends that the
administrative judge “discount [ed]” the testimony of the deciding official on the
2013 suspension that “no physician was suspended without pay for weeks for
raising their voices, complaining about staff ineptitude, using vulgarities, or
asserting rights” that the appellant believed were in the agency’s best interests.
Id. at 7 (emphasis omitted), 20 -21. The appellant does not provide a citation to
this testimony, and we could not independently find it. Based on our review of
the initial decision and the relevant evidence, however, it appears that there is
little, if any, evidence, to support this factor. To the extent evidence on Carr
factor 3 exists, the agency is required to come forward with all reasonably
15 We also include in our consideration the Chief of Staff , even though he was not a
proposing, concurring, or deciding official in either of the suspensions, because he
concurred with the ABI’s findings and forwarded those findings to the Chief of the
Medicine Service . IAF, Tab 4 at 130.
18
pertinent evidence; the failure to do so may be at the agency’s peril. Whitmore ,
680 F.3d at 1374 . Absent relevant comparator evidence, Carr factor 3 cannot
weigh in favor of the Government. Siler v. Environmental Protection Agency ,
908 F.3d 1291 , 1299 (Fed. Cir. 2018). We find, therefore, that Carr factor 3
weighs against the agency.
¶33 The court has also held that the Carr factors are “nonexclusive.” Miller v.
Department of Justice , 842 F.3d 1252 , 1257 (Fed. Cir. 20 16). Therefore, we have
considered other evidence discussed by the appellant on review, including , among
other things, the frequency with which he raised concerns to agency officials, the
“negligence (inaction)” of agency officials starting in 2004 -2005, the harm done
to his career and personal life as a consequence of his communications with OIG
and agency management off icials, the relationship between the agency and
UCLA , and the complex personnel issues that arose as a result of this
relationship . E.g., PFR File, Tab 4 at 9-18, 22 -35. However , given the serious
nature of the charged misconduct and the appellant’s admi ssion that he engaged
in most of the charged misconduct, we are left with a strong belief that the agency
would have suspended the appellant in 2013 and 2015 absent his whistleblowing
disclosures and protected activity. See Carr , 185 F.3d at 1326 (noting that the
whistleblower protection statutes are not meant to protect employees from their
own misconduct).
The appellant’s other arguments on review do not warrant a different outcome.
¶34 We have considered the appellant’s remaining arguments, but we find them
unavailing. For instance, r egarding his assertion that the agency’s actions were
the product of race discrimination, e.g., PFR File, Tab 4 at 11, the Board lacks the
authority to decide, in conjunction with an IRA appeal, the merits of an allegation
of prohibited discrimination, Fishbein v. Department of Health & Human
Services , 102 M.S.P.R. 4, ¶ 18 (2006).
¶35 We also have reviewed the 300 pages of documentation that the appellant
submitted on review. Many of the se documents, such as email correspondence
19
between him and the Chief of the Medicine Service and between him and OIG ,
his written response to the 2013 notice of pro posed suspension, and his formal
complaint of faculty misconduct against Dr. S.D. that he sent to the UCLA
Academic Senate , e.g., PFR File, Tab 4 at 55-56, 61-66, 71-73, 96-134, are not
new evidence because they were already part of the record below, Meier v.
Department of the Interior , 3 M.S.P.R. 247 , 256 (1980). As to the remaining
documents, 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). The appellant has not made such a
showing. Even if we assumed for the purposes of our analysis that the appellant
included “new” evidence on review, we are not persuaded that such evidence 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).
Conclusion
¶36 For the reasons described herein, we find that the appellant prove d that he
made whistleblowing disclosures and engaged in protected activity and that these
whistleblowing disclosures and protected activ ity were a contributing factor in
the agency’s decision to suspend him in 2013 and 2015. We further find that the
agency proved by clear and convincing evidence that it would have suspended the
appellant in the absence of his whistleblowing disclosures or protected activity.
Therefore, we deny the appellant’s request for corrective action.
NOTICE OF APPEAL RIG HTS16
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
16 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
20
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described bel ow do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filin g time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicia l review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal 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
21
relevance is the court’s “Guide for Pro Se Pe titioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit ou r website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any att orney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you 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 res pective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
22
Alternatively, you may request review by the Equal Employ ment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operatio ns within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then yo u must file
with the EEOC no later than 30 calendar days after your representative 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 O pportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, 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
23
of appeals of competent jurisdiction.17 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your peti tion to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s websi te, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representati on for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
17 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, sig ned into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court o f appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
24
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed throu gh the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BATRA_RAJ_SF_1221_15_0674_W_1_FINAL_ORDER_1992105.pdf | 2023-01-11 | null | SF-1221 | NP |
3,827 | https://www.mspb.gov/decisions/nonprecedential/GABEL_RENATE_M_PH_0752_17_0414_I_1_FINAL_ORDER_1992191.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RENATE M. GABEL,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
PH-0752 -17-0414 -I-1
DATE: January 11, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chungsoo J. Lee , Feasterville, Pennsylvania, for the appellant.
Angela Madtes , Esquire, Pittsburgh, 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
reversed her removal and denied her affirmative defenses. On petition for review,
the appellant challenges the administrative judge’s denial of her disability
discrimination and due process claims and also challenges his failure to award
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
back pay and other relief, including compensatory damages. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affe cted the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Th erefore, we DENY the petition for review. Except as
expressly MODIFIED to apply the correct standard to the claim of reprisal for
engaging in activity protected by the Americans with Disabilities Act, as amended
by the Americans with Disabilities Act Amen dments Act of 2008 (ADAAA) , we
AFFIRM the initial decision.2
¶2 Although not challenged by the appellant on review, we modify the
administrative judge’s analysis of the appellant’s reprisal claim s to the extent that
the underlying activity concerned the appel lant’s complaints of disability
discrimination .3 Initial Appeal File (IAF), Tab 49, Initial Decision (ID) at 8, 18 ;
2 Concerning the appellant’s argument that the agency violated her due process rights
when it engaged in ex parte communications, she raised this argument for the first time
on review. The Board gen erally will not consider an argument raised for the first time
in a petition for review absent a showing that it is based on new and material evidence
not previously available despite the party’s due diligence. Banks v. Department of the
Air Force , 4 M.S.P.R. 268 , 271 (1980). The appellant has not made that showing here.
Nevertheless, even if we were to consider her argument, we would find her argum ent
unavailing.
3 The Board reserves the authority to consider any issue in an appeal before it . 5 C.F.R.
§ 1201.115 (e).
3
IAF, Tab 7 at 31-32, Tab 19 at 6-7. Complaining of disability discrimination is
protected by the ADAAA . Pridgen v. Office of Management and Budget ,
2022 MSPB 31, ¶ 35. The Board recognized that a more stringent standard
applies in the co ntext of retaliation claims arising under the ADAAA, such that
the appellant must prove that her ADAAA -protected activity was a “but for”
cause of the retaliation. Id., ¶¶ 35, 37, 40, 42 . Because the administrative judge
found that the appellant did not show that her protected activity was a motivating
factor in her removal, ID at 18, she necessarily failed to meet the more stringent
“but for” standard that applies to this retaliation claim.
ORDER
¶3 We ORDER the agency to cancel the removal and to retroacti vely restore
the appellant to the agency rolls , effective August 28, 2017.4 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.
¶4 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).
¶5 No later than 30 days after the agency te lls the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board ’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
4 Effective December 7, 2018 , the agency removed the appellant pursuant to 38 U.S.C.
§ 714; the appeal of that removal action is being adjudicated separately , in Gabel v.
Department of Veterans Affairs , MSPB Docket No. PH-0714-19-0141 -I-1.
4
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIG HTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final dec ision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within th eir jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that 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
6
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposi tion of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decisi on. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other 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, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction .
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
If yo u submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained with in the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for infor mation regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtW ebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | GABEL_RENATE_M_PH_0752_17_0414_I_1_FINAL_ORDER_1992191.pdf | 2023-01-11 | null | PH-0752 | NP |
3,828 | https://www.mspb.gov/decisions/nonprecedential/GABEL_RENATE_PH_0714_19_0141_I_1_FINAL_ORDER_1992199.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RENATE GABEL,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
PH-0714 -19-0141 -I-1
DATE: January 11, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chungsoo J. Lee , Feasterville, Pennsylvania, for the appellant.
Stacey Conroy , Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Mem ber
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appeal of her removal taken pursuant to 38 U.S.C. § 714 as
untimely filed. On petition f or review, the appellant continues to argue that the
appeal should be construed as a timely appeal of a constructive removal, which
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 claims occurred 3 weeks after her removal under 38 U.S.C. § 714 on the day
that she received a letter from the Office of Personnel Management approving her
disability retirement application . Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due d iligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appe al, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review 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, th e nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available ap peal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
3
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have 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 fo r the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Co urt of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Me rit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4
(2) Judicial or EEOC review of cases involvin g a claim of
discrimination . This option applies to you only if you have claimed that 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 pre payment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims 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 . 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 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 Circui t
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petiti oners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our we bsite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorne y will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | GABEL_RENATE_PH_0714_19_0141_I_1_FINAL_ORDER_1992199.pdf | 2023-01-11 | null | PH-0714 | NP |
3,829 | https://www.mspb.gov/decisions/nonprecedential/CARVALHO_SHERRILL_A_SF_1221_15_0208_W_2_FINAL_ORDER_1991790.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SHERRILL A. CARVALHO ,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency,
and
OFFICE OF SPECIAL CO UNSEL
Intervenor .1
DOCKET NUMBER
SF-1221 -15-0208 -W-2
DATE: January 10, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL2
Adam Herzog , Esquire, Avi Kumin , Esquire, and Colleen Coveney ,
Esquire, Washington, D.C., for the appellant.
Carol L. Shea , Esquire, Charles M. Kersten , Esquire , and Evan Harry
Perlman , Washington , D.C., for the agency.
Wojun Lee , Esquire , and Joseph E. Siegelman , Esquire, Oakland ,
California , for the intervenor .
Henry J. Kerner , Washington, D.C., for the intervenor.
1 The Special Counsel, pursuant to 5 U.S.C. § 1212 (c)(2) and 5 C.F.R. § 1201.34 (b)(2),
moved to intervene in this case as a matter of right upon o btaining the cons ent of the
appellant. Carvalho v. Department of Justice , MSPB Docket No. SF -1221 -15-0208 -W-
1, Initial Appeal File (IAF), Tab 4. The administrative judge granted the motion. IAF,
Tab 9.
2 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
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 and the intervenor have filed petition s for review , and the
agency has filed a cross petition for review of the initial decision, which denied
the appellant’s request for corrective action in this individual right of action
(IRA) appeal. Generally, we grant petitions such as these only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judg e’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argu ment is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the parties have not
established any basis under section 1201.115 for granting the petition s or cross
petition for review. Therefore, we DENY the petition s for review filed by the
appellant and intervenor and the cross petition for review filed by the agency and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
BACKGROU ND
¶2 The appellant, a former Assistant United States Attorney (AUSA), filed a
timely IRA appeal alleging that she made protected disclosures that were
3
contributing factors in the agency’s actions to place her on a performance
improvement plan (PIP), to propo se her removal for performance reasons, and to
issue a removal decision letter based on those performance reasons. Carvalho v.
Department of Justice , MSPB Docket No. SF -1221 -15-0208 -W-1, Initial Appeal
File (IAF), Tab 1 at 10, 64, 68.3 The appellant asse rted that she made protected
disclosures to an attorney with the agency’s Professional Responsibility Advisory
Office (PRAO) and to her second -level supervisor , informing them that a fellow
AUSA may have had an ethical obligation to report to the judge in a criminal case
the fellow AUSA’s knowledge of ex parte contacts that occurred between defense
counsel in the trial and an alternate juror but had not done so and was not inclined
to do so. Id. at 10, 62, 64; IAF, Tab 55 at 6.
¶3 After a hearing, the Board’s administrative judge denied the appellant’s
request for corrective action. Carvalho v. Department of Justice , MSPB Docket
No. SF-1221 -15-0208 -W-2, Appeal File (W -2 AF), Tab 25, Initial Decision (ID)
at 2, 36. The administrative judge found that, after a guilty verdict in the
criminal trial at issue, the jury informed the fellow AUSA who prosecuted the
case that defense counsel had made an alternate juror uncomfortable by making
such comments to her outside of the courtroom as , “Do you have the time?” or
“You don’t mind if I share this elevator?” ID at 5. The administrative judge
found that, after the fellow AUSA later mentioned the juror contact issue and
other misbehavior of defense counsel to colleagues , including the appellant,
during a hallway conve rsation at work , the appellant worried that she might have
3 The agency issued a January 12, 2009 decision letter effecting the appellant’s removal
upon rece ipt of the letter. IAF, Tab 11 at 26, 34. Nevertheless, the agency
retroactively reinstated the app ellant and placed her on administrative leave pending the
intervenor’s investigation of her whistleblower complaint. IAF, Tab 24 at 1 -2, Tab 42
at 23. Effective May 23, 2009, the agency terminated the appellant’s appointment
pursuant to 5 C.F.R. part 715 , which covers voluntary separations such as resignations.
IAF, Tab 11 at 24. Effective May 24, 2009, the appellant was appointed to an
Attorney -Advisor position with the Social Security Administration, id. at 22, where she
later served as an administrat ive law judge, IAF, Tab 42 at 23; Hearing Transcript (HT)
at 282 (testimony of the appellant).
4
a personal duty as an officer of the court to report the ex parte juror contact to the
judge in the case . ID at 6 -7. The administrative judge noted that, after the
appellant contacted the PRAO at torney and her second -level supervisor, PRAO
ultimately contacted higher -level management and informed them that, depending
on the context, the prosecutor “could have a duty to report that contact to the
court.” ID at 7 -9. After the Professional Responsi bility Officer at the
U.S. Attorney’s Office was consulted and recommended disclosing the contact to
the court, the prosecutor did so ; the judge in the criminal case , however, took no
further action. ID at 9 -10.
¶4 The administrative judge found that the app ellant was not aware of the
existence of any applicable California Rule of Professional Conduct when she
contacted PRAO and called PRAO only to seek advice as to whether she had a
personal obligation to report what she had heard in the hallway. ID at 10 -11.
The administrative judge further found that, although the appellant did not know
when she spoke with the PRAO attorney or her second -level supervisor whether
the ex parte contact had been reported to the court, she did not believe that the
information had been disclosed to the court. ID at 11. The administrative judge
concluded that, “while it is reasonable to conclude that the appellant’s
communications with PRAO and [her second -level supervisor] did not constitute
disclosures of the type meant to be protected under 5 U.S.C. § 2302 , in light of
the extremely liberal analysis required to be applied in such cases, I find that they
were protected under the statute.” ID at 11. The administrative judge further
found that the appellant proved that her disclosures were a contributing factor in
the personnel actions because management officials were aware of the disclosures
and took the actions within a period of time such that a reasonable person co uld
conclude that the disclosures were a contributing factor. ID at 12.
¶5 Nevertheless, the administrative judge held that the agency proved by clear
and convincing evidence that it would have taken the same actions absent the
appellant’s disclosures. ID a t 36. The administrative judge found that the
5
agency’s evidence support ing its performance -based action was “ample” and
sufficient to comprise substantial evidence, that it was clear the appellant’s
performance had been perceived as declining in the years leading up to the PIP,
that those performance issues had been discussed repeatedly with the appellant,
and that resort ing to a PIP had not only been actively contemplated and pursued
but discussed with the appellant long before she contacted PRAO and shortly
thereafter before those who approved the PIP knew of that contact. ID at 14-29.
The administrative judge also held t hat the agency’s motive to retaliate was
“scant” and “exceedingly weak” because there was no evidence of harm to the
supposed retaliators, the information disclosed was “innocuous,” the attorneys
who may have been concerned about the matter had no role in the PIP or other
agency actions, PRAO merely gives advice or suggestions such that “no AUSA
would fear its involvement in their cases, as one might the Office of Professional
Responsibility or the Office of Inspector General,” and the issue raised by the
appellant to the PRAO attorney was thoroughly concluded with no adverse
consequences to anyone by the time the decision was made to place the appellant
on the PIP. ID at 29-34. The administrative judge further found that it was
exceedingly difficult to be lieve that the disclosure s created a level of animus that
would :
move an entire high -level chain of command of busy professionals to
fabricate the need for the extremely laborious and time -consuming
process of gathering numerous examples of performance
deficiencies, marshalling them into a lengthy and detailed PIP letter,
spending many hours over the course of months working with the
appellant, and finally drafting a 30 -page proposal notice , with
hundreds of pages of attached documentation.
ID at 34. Finally, the administrative judge found that the agency had placed three
other AUSAs on PIPs since 2003, none of those employees were whistleblowers,
and the agency therefore showed that it had ta ken similar actions against
nonwhistleblowers who were other wise similarly si tuated to the appellant. ID
at 34-35.
6
DISCUSSION OF ARGUME NTS ON REVIEW
The Agency’s Cross Petition for Review
¶6 The agency asserts that the administrative judge incorrectly found that the
appellant had a reasonable belief that she made a p rotected disclosure. Petition
for Review ( PFR ) File, Tab 8 at 4 -5. In particular, the agency asserts that the
appellant was not aware of California Rule of Professional Conduct 5 -320, which
addresses contact with ju rors, when she made her disclosures. Id. at 8-9, 12. The
agency also contends that the appellant has not suggested that she believed that
the U.S. Attorney’s Office or the fellow AUSA violated any other law, rule, or
regulation by not immediately reporting the ex parte contact to the court. Id.
at 12-13.
¶7 In general, a protected disclosure must identify a specific law, rule, or
regulation that was violated. Langer v. Department of the Treasury , 265 F.3d
1259 , 1266 (Fed. Cir. 2001). Nevertheless, this requirement does not necessitate
identif ying a statutory or regulatory provision by title or number when the
employee’s statements and the circumstances surrounding the making of those
statements clearly implicate an identifiable violation of law, rule, or regulation.
Id. Here, we find that the ap pellant’s disclosures that a fellow AUSA had not
notified the court of his knowledge of an ex parte contact between defense
counsel and a juror during a criminal trial clearly implicated the question of
whether the fellow AUSA had an ethical obligation to do so under the California
Rules of Professional Conduct. See Cal. Rule of Prof. Conduct 5 -320(B) ( noting
that during trial a member connected with the case shall not communicate directly
or indirectly with any juror), 5 -320(G) (requiring a member to reve al promptly to
the court improper conduct toward a person who is a juror of which the member
has knowledge) . Any fail ure by the appellant to identify a specific law, rule, or
regulation when making the disclosure s does not, therefore, mean that she did no t
reasonably believe that an ethical rule had been violated. See Langer , 265 F.3d
at 1266 (finding that “Langer’s mentioning to the AUSAs and his supervisor that
7
he believed there was a problem with a disproportionately high number of African
Americans be ing prosecuted clearly implicated the question of selective
prosecution and sufficiently raised possible violations of civil rights to constitute
a protected disclosure”); Benton -Flores v. Department of Defense , 121 M.S.P.R.
428, ¶¶ 7, 9-10 (2014) (finding protected disclosures concerning staff mistreat ing
students, even when the disclosures did not reference a law, rule, or reg ulation,
because the agency’s regulations clearly mandated the safety and security of staff
and students); Baldwin v. Department of Veterans Affairs , 113 M.S.P.R. 469 ,
¶¶ 16-21 (2010) (finding protected a disclosure of a physical threat of harm, even
though the disclosure did not identify a law, rule, or regulation); Mogyoro ssy v.
Department of the Air Force , 96 M.S.P.R. 652 , ¶¶ 12-13 (2004) (finding protected
a disclosure that the agency failed to give its employees breaks, even absent a
reference to a specific law, rule, or regulation); Kalil v. Department of
Agriculture , 96 M.S.P.R. 77 , ¶ 16 (2004) (f inding protected a disclosure that
could reasonably be regarded as evidencing an obstruction of justice violation ,
even though the appellant did not cite any specific law, rule, or regulation);
Salinas v. Department of the Army , 94 M.S.P.R. 54 , ¶ 8 (2003) (finding protected
a disclosure that a coworker was working on personal items when he should have
been performing agency work, eve n though the appellant did not identify a
specific regulat ory violat ion). Because we agree with the administrative judge
that the appellant reas onably believed that failing to report the ex parte contact
implicated certain ethical obli gations, she need no t also have believed that such
failure violated another law, rule, or regulation.
¶8 The agency further claims that the appellant called PRAO only to seek its
advice as to whether she might have a personal obligation to report what she
heard, not to reveal ag ency misconduct, and that she similarly spoke to her
second -level supervisor in an attempt to follow PRAO’s instructions, not because
she believed that any agency employee had violated a law, rule, or regulation.
PFR File, Tab 8 at 13 -14. We disagree. A s set forth below, the appellant, while
8
seeking advice as to her own obligations, also indicated that an AUSA had not
reported and/or was not inclined to report the ex parte contact himself . Moreover,
the appellant’s motive for mak ing her disclosure s, such as obtaining advice for
herself, does not exclude them from protection. 5 U.S.C. § 2302 (f)(1)(C) ;4 see
Ayers v. Department of the Army , 123 M.S.P.R. 11 , ¶ 20 (2015).
¶9 The appellant testified that she told the PRAO attorney on March 11, 2008,
“what the AUSA had told me,” which was that he “wasn’t inclined” to report the
ex parte contact t o the court. HT at 382 -83, 386 (testimony of the appellant).
The appellant testified that she told the PRAO attorney
that another prosecutor in my office informed me and some others
who were there that . . . he had been told after the ver dict . . . by
members of the jury that there had been communications between
. . . the defense attorney and a juror on several occasions; and that
the juror was made very uncomfortable by that; and that this
prosecutor had indicated that the other members of the jury who
heard about this advised her to let the judge know but that she had
not, and that none of the other members of the jury had advised the
court either; and that the prosecutor in my office had not notified the
court.
Id. at 386 -87. The appel lant wrote contemporaneous notes of her discussion with
the PRAO attorney , which indicat e the appellant’s having reported that she and
some of my colleagues heard another colleague tell us about talking
to the jur y after a guilt y verdict in his trial. He said that one juror
told him that the defense attorney approached her several times
outside of the jury proceedings [and] that made her uncomfortable.
She told some of the other jurors who encouraged her to tell the
judge. She said she didn’t tell the judge. I [and] 2 other of my
colleagues encouraged this attorney to tell the presiding judge about
it. He responded that he was not inclined to do that. PRAO attorney
4 Section 2302(f)(1)(C) was enacted as part of the Whistleblower Protection
Enhancement Act of 2012 (WPEA), Pub. L. No. 112 -199, § 101, 126 Stat. 1465, 1466.
The Board held in Day v. Department of Homeland Security , 119 M.S.P.R. 589 , ¶¶ 9-23
(2013), that section 101 was a clarification of existing law and applied retroactively. In
any event, even prior to the passage of the WPEA, the Board recognized that an
appellant’s motive for making a disclosure was not relevant to whether that disclosure
was protect ed. Molinar v. Department of Veterans Affairs , 80 M.S.P.R. 248 , ¶ 9 (1998).
9
asked if I’d talked to my supervisor about [it]. I told her that he was
present when [my] colleague talked about it. I told her I wanted to
know if I had a responsibility to do anything about [it]. She said she
would look into it [and] be back in touch w [ith] me. She asked if
this was a recent event. I said it occurred last week.
W-2 AF, Tab 14, OSC Ex hibit (Ex.) 213 at 104 -05. The AUSA did not deny
stating that he was not inclined to report the ex parte contact; rather, he testified
that he did not recall maki ng that statement. HT at 48 -49 (testimony of the
AUSA ).
¶10 The appellant further testified that, although she was not aware of a specific
name or number of a rule that required the reporting of the ex parte contact, she
knew that the judge in question had required such reporting in previous cases, she
consid ered herself an officer of the court, and she believed that failing to report
the ex parte contact “was a violation of ethical responsibility, ethics.” HT
at 384-85 (testimony of the appellant). She testified that she called PRAO to seek
advice as to wha t duty she had in th at situation and that she did not tell the PRAO
attorney which AUSAs had worked on the case because she was not calling “for
the explicit purpose of getting anyone in trouble.” HT at 387, 395 (testimony of
the appellant). She testifie d that the PRAO attorney mentioned a rule of candor
with the court as well as a California bar rule requiring the reporting of the ex
parte contacts to the court. HT at 396 (testimony of the appellant). She testified
that she told the PRAO attorney that she did not know if the agency might report
it in the future, but that up to that point she believed that it had not been reported
to the court. HT at 397 (testimony of the appellant).
¶11 The PRAO attorney testified that she did not “think” the appellant tol d her
that her fellow AUSA was not inclined to report the ex parte contact and that her
recollection was that the appellant did not know whether it was going to be
reported. HT at 1623 -24 (testimony of the PRAO attorney ). She nevertheless
testified that, when she completed a summary sheet of her conversation with the
appellant , she believed that the question of whether the ex parte contact was
10
going to be reported or had been reported was sti ll “a work in progress.” HT
at 1624 (testimony of the PRAO atto rney). In fact, an inquiry summary sheet
indicates that the PRAO attorney initially suggested to the appellant that she ,
tell the Prosecutor or a supervisor that she had contacted PRAO to
discuss whether she had any obligations to report the information she
had heard, and that she had been advised by PRAO that, depending
on all of the relevant facts, the contact may need to be reported to the
court by the AUSA who had experienced the contact or by a
supervisor.
W-2 AF, Tab 24 at 6. The PRAO attorney’s indication in the inquiry summary
shee t—that the appellant should tell the AUSA in question that he may need to
report the contact —supports the appellant’s contention that she informed the
PRAO attorney that the AUSA had not reported the ex parte contact t o the court.
The appellant also testified that, when she spoke with her second -level
supervisor, HT at 917, she “told him that I was still thinking or concerned that the
ex parte contact that [her fellow AUSA] had talked about a fter the . . . trial and
that he had talked about just the week before, I said I was —I was still concerned
that I thought this matter needed to be re ported to the court,” HT at 392
(testimony of the appellant). The second -level supervisor testified that the
appellant expressed her concern to him abou t the juror contact. HT at 977
(testimony of the second -level supervisor ). Thus, we find that the record
evidence establishes that the appellant , in making her disclosures, not only
requested advice regarding whether she had a duty to report the ex parte contact
but also disclosed and expressed her concern that her fellow AUSA had not or
was not inclined to do so.
¶12 The agency further contends that any belief the appellant may have had that
she disclosed a violation of law, rule, or regulation was not reasonable because
she was “acting on a fragment of a conversation that she had heard in the hallway
a week prior,” she did not know whether her fellow AUSA had reported the ex
parte contact to the court, she sent an email to the PRAO attorney noting that the
11
AUSA did not indicate whether he intended to notify the judge, and the PRAO
attorney testified that she did not have enough information to determine whether
the AUSA had violated a rule. PFR Fi le, Tab 8 at 15 -16. The agency contends
that additional facts were readily ascertainable if the appellant had spoken to the
AUSA between the date of the hallway conversation and her telephone call to the
PRAO attorney , such as the fact that th e AUSA inten ded to research h is
responsibilities and “explore the matter further.” Id. at 16 -17.5
¶13 As set forth above, the appellant had sufficient information to reasonably
believe that the AUSA in question had not reported the ex parte contact to the
court, even tho ugh he w as obligated to do so under ethics rules. The agency has
not shown that the appellant was required to contact the AUSA an additional time
to ascertain whether his intentions regarding not reporting the ex parte contact to
the court had changed . See Conrad v. Department of Justice , 99 M.S.P.R. 636,
¶¶ 10, 13 -14 (2005 ) (finding that the appellant was not required to confront the
alleged wrongdoers to establish that his belief was reasonable and that an
employee need not prove an actual violation to establish that he had a reasonable
belief that his disclosure met the statutory criteria ). Under these circumstances,
we find that the agency has shown no error in the administrative judge’s finding
that the appellant reasonably believed that she made protected disclosures.
The Intervenor’s Petition for Review
¶14 The intervenor asserts that the administrative judge improperly applied the
lower , substantial evidence standard that the Board uses in performance -based
actions in evaluating the strength of the evidence in support of the agency’s
actions, rather than the more stringent clear and convincing evidence standard.
PFR File, Tab 4 at 10. More specifically, the intervenor asserts that the
5 The agency further contends that the acting officials did not perceive the appellant as
a whistleblower. PFR File, Tab 8 at 17 -23. We need not address this argument because
we agree with the administrative judge that the appellant proved by preponderant
evidence that she made protected disclosures.
12
administrative judge should have evaluated whether the agency had strong
evidence to support its personnel actions and erroneously relied on a finding that
the agency produced substantial evidence in support of its actions “as sufficient
to determine that clear and convincing evidence showed that the Agency would
have taken the same action regardless of Appellant’s whistleblowing.” Id. at 10,
12. Thus, th e intervenor contends that the administrative judge did not
“rigorously analyze the strength of the evidence, beyond his general finding that
it met the substantial evidence standard.” Id. at 13. We disagree.6
¶15 The administrative judge correctly set forth the standard in this case, noting
that the Bo ard must order corrective action unless the agency establishes by clear
and convincing evidence7 that it would have taken the same personnel actions
absen t the disclosures. ID at 12 -13; see 5 U.S.C. § 1221 (e)(1) -(2).
The administrative judge also correctly found that, in determining whether an
agency has shown by clear and convincing evidence that it would have taken the
same actions absen t the disclosures, the Board will consider the strength of the
evidence in support of its action s, the existence and strength of any motive to
retaliate on the part of the agency officials who were involved in the decision s,
and any evidence that the agency takes similar actions against employees who are
6 The intervenor and the agency have filed additional pleadings addressing Miller v.
Department of Justice , 842 F.3d 1252 (Fed. Cir. 2016), and i ts possible application to
this appeal. PFR File, Tabs 20 -21. In Miller , which did not involve a
performance -based action under 5 U.S.C. chapter 43 as in this case, the court addressed
the connection between the clear and convincing evidence burden of pr oof on the
agency and the court’s own substantial evidence standard of review, noting that what
constitutes substantial evidence for purposes of the court’s review may be determined
only with respect to the burden of proof that the litigant bore in the tri al court.
842 F.3d at 1258. The intervenor has not shown that this principle, or any other
holding set forth in Miller , affects our determination, except as set forth below, that the
administrative judge correctly applied the clear and convincing evidenc e standard in
this case.
7 Clear and convincing evidence is that measure or degree of proof that produces in the
mind of the trier of fact a firm belief as to the allegations sought to be established.
5 C.F.R. § 1209.4 (e).
13
not whist leblowers but who are otherwise similarly situated. ID at 13; see Carr v.
Social Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999).
¶16 The administrative judge’s discussion of the substantial evidence standard
arose in connection with his analysis of the intervenor’s contention that the
agency’s failure to show a clear and convincing basis for the PIP required a
finding that the PIP, the proposed removal, and the decision notice “cannot be
sustained.” ID at 14. The administrative judge found that an agency does not
need to prove in an IRA appeal the merits of the action by the usual applicable
burdens of proof, much less by clear and con vincing evidence. Id. The
administrative judge correctly held that an agency instead must show by clear and
convincing evidence that it would have taken the same action absen t the protected
disclosure. Id. The administrative judge therefore held that, “while the agency in
this case need not necessarily introduce substantial evidence sufficient to support
its performance -based actions, the Board may consider the strength of the
agency’s evidence in support of its actions.” Id.
¶17 The administrative judge t hen found that “ if this were a regular appeal
strictly of a performance -based action under Chapter 43 of title 5 of the U nited
States Code, the agency’s evidence in support of it would be sufficient to
comprise substantial evidence . . . .” ID at 14 -15 (e mphasis added). The
administrative judge thereafter otherwise correctly applied the clear and
convincing evidence standard in this case . The administrative judge reviewed and
considered the testimony of the appellant’s peers and others who worked with her
on cases and who believed that she had done some good work, was not at fault for
excessive delays cited in the proposal and decision n otices, was not too nervous
at trial, and wrote indictments that were legally sufficient. Despite this evidence,
the administrative judge found that the agency’s failure to rely on these
individuals as witnesses did not undermine its case because the agen cy called as
witnesses the managers who actually supervised and evaluated the appellant or
reviewed and assessed her performance as a part of their duties. ID at 15.
14
¶18 The administrative judge further noted that the letter placing the appellant
on a PIP pro vided specific and detailed examples of performance deficiencies in
four of her five critical elements, and the proposal notice provided extremely
detailed explanations of her deficiencies, synthesized the evaluations of three
supervisors, and incorporated criticism of her performance by an AUSA in
another district office, the Federal Bureau of Investigation and investigating
agents with whom she worked, a s well as the presiding judge in one of her trials
during the PIP. ID at 15-16; W -2 AF, Tab 8, OSC Ex. 65, Tab 9, OSC Ex. 95.
Despite the appellant’s contentions that the deficiencies set forth in the proposal
notice were false, petty, or overblown, the administrative judge found that the
hearing testimony
establishes that the agency received numerous com plaints from
investigators and case agents with whom she worked, expressing
frustration with the length of time it took for her to indict cases, and
explaining that repeated inquiries were met with her protestations
that she had not had time to do so, or t hat such inquiries were met
with silence.
ID at 16. The administrative judge found that the evidence also established that
the appel lant’s supervisors on several occasions had to remind her to indict cases
that had been assigned to her for more than 1 yea r and often had to give her
explicit deadlines for doing so and that the appellant was sometimes unable to
comprehend inquiries from judges during oral arguments, leading them to openly
criticize her for failing to answer questions. ID at 16 -17. The admi nistrative
judge further found that there was substantial evidence that such problems
continued during the PIP period and that testimony from several managers
supported the charges that the agency received complaints and requests for
intervention from indi viduals with whom the appellant worked, the appellant
unnecessarily delayed indicting cases and failed to work collegially with others,
she failed to effectively “marshall” evidence necessary to support specific
charges in indictments, she failed to move c ases forward to settlement or trial
15
despite repeated prompting from her supervisors, and she did not, according to a
judge, have the instincts and natural inclination for jury trials. ID at 17.8 In
making these factual findings, the administrative judge relied upon the demeanor
of key witnesses. ID at 18, 27, 33; see Haebe v. Department of Justice , 288 F.3d
1288 , 1301 (Fed. Cir. 2002) (the Boar d must defer to an administrative judge’s
credibility determinations when they are based, explicitly or implicitly, on
observ ing the demeanor of witnesses testifying at a hearing; the Board may
overturn such determinations only when it has “sufficiently so und” reasons for
doing so).
¶19 The administrative judge found that this evidence “clearly constituted at
least substantial evidence ” in support of the agency’s actions. ID at 18. Despite
this reference to “substantial evidence,” the administrative judge con cluded his
analysis of this section of the initial decision by finding that the “relative strength
of the agency’s evidence in support of its finding that the appellant had not
successfully completed the PIP, and that her performance under it was
unsuccess ful, is ample.” ID at 29. The administrative judge later addressed the
existence and strength of any motive to retaliate and any evidence that the agency
took similar actions against employees who were not whistleblowers but who
otherwise were similarly situated, ultimately concluding that, upon weighing the
three factors set forth in Carr , “the strength of the agency’s evidence in support
of its actions is ample, the strength of any motive to retaliate on the part of the
agency officials w ho were involved in the decision is exceedingly slight, and the
evidence that the agency takes similar actions against employees who are not
8 The intervenor further asserts that, although the administrative judge was required to
assess the strength of all the charges the ag ency relied upon in taking its action s, he
made no determination as to any of the specific counts listed in the PIP or the notice of
proposed removal. PFR File, Tab 4 at 14. The above findings by the administrative
judge, however, generally correspond to the critical elements and charges se t forth in
the proposal and decision notices, which include specific allegations of unacceptable
performance relating to the critical elements of Case Handling, Advocacy, Productivity,
and Writing. IAF, Tab 11 at 26 -35, Tab 17 at 5 -34, 36 -50.
16
whistleblowers but who are otherwise similarly situated is clear.” ID at 29 -36.
He therefore found that the agenc y proved by clear and convincing evidence that
it would have taken the same actions against the appellant absent her disclosures.
ID at 36. Thus, although the administrative judge made several references to the
substantial evidence standard in his initia l decision, we find that he ultimately
applied the correct legal standard in this case.9
¶20 The intervenor also asserts that the administrative judge did not evaluate all
of the evidence, including countervailing evidence, in determining whether the
agency pr oved by clear and convincing evidence that it would have taken the
same actions absen t the appellant’s whistleblowing. PFR File, Tab 4 at 15. In
particular, the intervenor contends that the administrative judge did not evaluate
or weigh the “voluminous” evidence the appellant produced to rebut each of the
charges of poor performance levied against her in the PIP letter and in the notice
of proposed removal, as well as testimony from witnesses who challenged the
agency’s allegations of poor performance and instances of “over -reaching” by the
agency during the PIP. Id. at 15 -17. As set forth above, however, the
administrative judge considered the countervailing evidence submitted by the
appellant but nevertheless found that the agency’s evidence was suffic iently
“ample” to warrant, along with the other Carr factors, a finding that the agency
prove d by clear and convincing evidence that it would have taken the same
actions absent the appellant’s protec ted disclosures. In this respect , we find that
the admin istrative judge complied with the guidance set forth in Whitmore v.
Department of Labor , 680 F.3d 1353 (Fed. Cir. 2012), concerning the clear an d
convincing evidence test. Unlike in Whitmore , 680 F.3d at 1368 -72, where in the
court found that the administrative judge abused her discretion by excluding or
9 Even assu ming that the administrative judge did not apply the correct legal standard,
we hold, based on the factual findings made in the initial decision, that the agency
produced strong evidence in support of its actions and ultimately proved by clear and
convinci ng evidence that it would have taken the same actions absent the appellant’s
protected disclosures. ID at 13 -36.
17
failing to consider evidence offered by the appellant that was necessary to
adjudicate his whi stleblower claim, the administrative judge here did not prevent
the appellant from effectively presenting her case. The administrative judge
approved all of the witnesses requested by the appellant and the intervenor,
compare IAF, Tab 56 , with IAF, Tab 62 and HT (June 24, 2015) , held an 8 -day
hearing, and admitted and considered thousands of pages of evidence submitted
by the appellant and the intervenor. Moreover, the thorough ly explained initial
decision and lengthy hearing transcript reveal that the administrative judge
listened closely to the testimony of witnesses from both sides, including those
who bolstered the appellant’s claim of reprisal for whistleblowing. See Campbell
v. Department of the Army , 123 M.S.P.R. 674 , ¶¶ 22-23 (2016).
¶21 The intervenor further asserts that the administrative judge improperly
relied on non -Carr factors when he held that the agency h ad nonretaliatory
reasons for its actions, such as the appellant’s alleged poor performance for many
years before her placement on a PIP, her prior supervisor’s failure to take
appropriate action during that time because he was “too kind” and had a large
workload, and her new supervisor’s willingness to be more confrontational and
“micro -manage” the appellant. PFR File, Tab 4 at 18 -19. The intervenor asserts
that the administrative judge’s consider ing these nonretaliatory reasons as part of
his analysis of the strength of the agency’s evidence was improper because he did
not assess the actual charges brought against the appellant or the evidence
supporting those charges. Id. at 19. The intervenor contends that a nonretaliatory
explanation for personnel a ctions will be offered in every whistleblower case and
evidence in support of such an explanation cannot be all that is required for the
agency to meet its burden of showing that it would have taken the same action
absent the disclosures. Id. at 20 -22.
¶22 Although the intervenor contends that the administrative judge improperly
relied on “nonretaliatory reasons,” such as the appellant’s pre -PIP deficiencies, in
finding that the agency’s evidence in support of its actions was strong, we
18
disagree. The administ rative judge made these findings in response to arguments
raised by the intervenor and the appellant that the appellant’s annual performance
ratings before her placement on the PIP contained no criticism, that the agency
began to closely scrutinize her wor k only after her disclosures, and that the
appellant had no prior notice that her performance was considered deficient until
the agency placed her on a PIP. ID at 18 -29. Further, the administrative judge’s
discussion of the years leading up to the PIP sh ed light upon his findings
regarding the appellant’s credibility. As the administrative judge found, these
well-documented performance issues and meetings with supervisors “bel[ie] the
appellant’s test imony” of her unblemished career and prove that her cl aim that the
PIP came out of nowhere “is simply not accura te.” ID at 19 n.11, 26 n.16.
Moreover, as set forth above, the administrative judge did not rely upon these
findings relating to the appellant’s pre -PIP performance as the sole basis for his
findi ng that the agency’s evidence in support of its actions was strong. ID
at 13-18. Instead, as previously discussed, the administrative judge’s
determination that the agency submitted “ample” evidence in support of its
actions was based on testimonial and documentary evidence, bolstered in part by
his demeanor -based credibility findings, that corresponded to the critical elements
addressed in the PIP and the charges set forth in the proposal and decision
notices.
¶23 Thus, we find that the intervenor has not established a basis for disturbing
the factual findings and legal conclusions made by the administrative judge.10
10 The intervenor has filed a motion for leave to submit an additional pleading that
would discuss the applicability of Santos v. National Aero nautics & Space
Administration , 990 F.3d 1355 (Fed. Cir. 2021) , to this case. PFR File, Tab 23. We
deny the motion because the intervenor has not shown that the additional argument
would be material, i.e., of sufficient weight to warrant a different outcome from that of
the initial decision. 5 C.F.R. § 1201.114 (k); see Russo v. Veterans Administration ,
3 M.S.P.R. 345 , 349 (1980). In Santos , the court held that, in addition to the five
elements an agency must prove in a performance -based action taken under 5 U.S.C.
chapter 43, the agency also must justify the institution of a PIP by proving by
substantial evidence that the employee’s performa nce was unacceptable prior to the
19
The Appellant’s Petition for Review
The agency’s evidence in support of its actions is strong.
¶24 Regarding the strength of the agency’s evidence, the appellant contends that
the initial decision provides a terse, one -page summary of a voluminous record
involving her work performance without identifying any of the four counts upon
which her PIP and dec ision letter were based. PFR File, Tab 3 at 22 -23. She also
asserts that several of the agency’s specific findings regarding her performance
were unexplained or improperly determined. Id. at 24 -25. As set forth above,
however, the administrative judge’ s findings generally reflect the critical
elements set forth in the PIP and the charges set forth in the proposal and decision
notices, which included specific allegations of unacceptable performance relat ed
to the critical elements. ID at 15 -17. The app ellant’s assertions do not establish
that the administrative judge erred when he found “ample” evidence in support of
the personnel actions taken by the agency. ID at 29, 35.
¶25 The appellant also contends that, instead of addressing the evidence
supportin g the personnel actions, which all occurred in 2008, the administrative
judge addressed the appellant’s performance in prior years. PFR File, Tab 3
at 23, 26. As previously discussed, this analysis placed the appellant’s more
recent performance issues in context and was made in response to the appellant’s
claims that the agency closely scrutinized her work only after her disclosures and
that she was not aware that her performance was deficient until the agency placed
PIP. Santos , 990 F.3d at 1360 -61. We find that this case is distinguishable from
Santos . First, this case does not involve an action taken under 5 U.S.C. chapter 43.
Rather, it is an IRA appeal, under which the Board l acks the authority to adjudicate the
merits of the underlying personnel action. See Lu v. Department of Homeland Security ,
122 M.S.P.R. 335 , ¶ 7 (2015). Second, the personnel actions in this case do not include
a removal for unacceptable performance. As set forth above, the appellant appears to
have resigned in lieu of removal. In any event, given that one of the personnel ac tions
involved the appellant’s placement on a PIP, the administrative judge addressed the
appellant’s pre -PIP performance in great detail, finding significant evidence in support
of that action. ID at 13 -29. Thus, we find no basis for granting the interv enor’s motion
in this case.
20
her on a PIP. ID at 18-29. Therefore , the appellant has shown no error in the
administrative judge’s more extensive review of the appellant’s performance.
The relevant agency officials did not have a strong motive to retaliate.
¶26 The appellant asserts that the administrative judge erred when he found that
the agency did not have a strong motive to retaliate because he improperly
focused on the supposed triviality of the content of the ex parte communications,
rather than on the disclosures themselves. PFR File, Tab 3 at 11 -12. We
disagree. In response to the appellant’s argument that her disclosures angered
agency officials because they might have led to a challenge of the defendant ’s
conviction in the criminal case , the administrative judge addressed the nature of
the ex parte contact s, which were a part of the disclosures, in finding that the
appellant had exaggerated and mischaracterized the evidence. ID at 29 -30. The
administrative judge properly considered what he found to be the “innocuous”
nature of the ex parte communication s in deciding whether any agency officials
would have likely been so conc erned about the verdict as to establish a motive on
their part to retaliate against the appellant for her disclosures . ID at 30; Ryan v.
Department of the Air Force , 117 M.S.P.R. 362 , ¶ 14 (2012) (finding that
assess ing the existence and extent of any retaliatory motive cannot be properly
made without considering the nature of the disclosures).
¶27 The appellant also contends that the administrative judge ignored evidence
pertaining to the potential harm to agency officials resulting from the disclosures
and that he gave too much weight to the testimony of agency officials who denied
having a retaliatory motive. PFR File, Tab 3 at 12. In this regard, the appellant
asserts that the administrative judge ignored evidence that her disclosures
threatened the “integrity” of the verdict in the criminal case and threatened to
expose the ethical lapses of agency officials who were complicit in the AUSA’s
failure to report the ex parte contact s. This allegedly ignored evidence includ ed
the appellant’s testimony that her second -level supervisor told her that
management did not want to disturb the verdict, testimony that the AUSA was
21
discouraged from reporting the ex parte communications to the court, and a
statement from PRAO that the ex parte communications went to the integrity of
the verdict . Id. at 13 -14.
¶28 The Federal Circuit has cautioned us against taking too narrow a view of the
second Carr factor. In Whitmore , 680 F.3d at 1370, the court stated , “[t]hose
responsible for the age ncy’s performance overall may well be motivated to
retaliate even if they are not directly implicated by the disclosures, and even if
they do not know the whistleblower personally, as the criticism reflects on them
in their capacities as managers and emplo yees.” The court in Whitmore
determined that, when a whistleblower makes highly critical accusations of an
agency’s conduct that draws the attention of high -level agency managers, the fact
that an agency official is “outside the whistleblower’s chain of c ommand, not
directly involved in alleged retaliatory actions, and not personally named in the
whistleblower’s disclosure is insufficient to remove the possibility of a retaliatory
motive or retaliatory influence,” and that the Board should consider any mot ive to
retaliate on the part of the agency official who ordered the action, as well as that
of any officials who influenced the action. Id. at 1371. In Miller , 842 F.3d
at 1261 -62, the court instructed the Board not to limit its consideration of a
motive to retaliate to the appellant’s supervisors, but to examine whether a
retaliatory motive could be imputed more broadly to other officials or entities
involved in the decision . Similarly, in Robinson v. Department of Veterans
Affairs , 923 F.3d 1004 , 1019 (Fed. Cir. 2019), the court found that, although the
deciding official did not have a personal motive to retaliate against the appellant
for con tradicting an agency Under Secretary, the administrative judge erred by
failing to consider whether he had a “professional retaliatory motive” against the
appellant because his disclosures “implicated the capabilities, performance, and
veracity of [agency] managers and employees, and implied that the [agency]
deceived [a] Senate Committee.” Nevertheless, after considering the
administrative judge ’s reliance upon the deciding official’s credibility and
22
demeanor in his determination that the deciding officia l lacked a motive to
retaliate, the court agreed with the administrative judge that there was no
retaliatory motive, either professional or personal. Id. at 1019 -20. The court in
Robinson therefore found that that the second Carr factor slightly favored the
agency and that the agency met its overall clear and convincing evidence burden
given the strength of Carr factor one and the neutral evidence regarding the third
Carr factor. Id. at 1020.
¶29 Here, t he administrative judge considered the appellant’s argu ments
concerning potential harm to agency officials , including those who were not her
supervisors, but found them unavailing. ID at 29-34. Moreover, a lthough the
appellant contends that her testimony and contemporaneous notes show that her
second -level supervisor told her that management did not want the verdict to
be disturbed , PFR File, Tab 3 at 13, the administrative judge found that the
second -level supervisor vehemently denied making such a statement and that this
allegation w as not reflected in the appellant’s correspondence with PRAO or the
testimony of the PRAO attorney , ID at 8 -9. In any event, even assuming that
there was initial concern about disturbing the verdict, the evidence set forth by
the administrative judge suggests that any concern decreased as management
learned more about the “innocuous” nature of the ex parte communications .
ID at 5-10, 30 -34. Although some evidence suggests tha t the agency determined
that it was not necessary to immediately report the ex parte communications to
the court, W -2 AF, Tab 7, OSC Ex . 16, Tab 11, OSC Ex . 158, that same evidence,
as well as testimony found persuasive by the administrative judge, ID at 6, 29-34,
also indicates that the agency requested that the AUSA research the matter further
and take any appropriate action, including drafting a memorandum for
management explaining what had occurred. The fact that the AUSA informed his
supervisor that t he judge in the criminal case had “polled” jurors when one juror
alleged that another juror had suggested that the y were not obligated to follow the
law, W -2 AF, Tab 7, OSC E x. 18, and that PRAO ultimately informed
23
management that the contact should be reported to the court, W -2 AF, Tab 12,
OSC Ex . 207, do not suggest that management officials were overly concerned
about the effect of the disclosure s on the verdict or worried about repercussions
they might face for the delay in informing the court.
¶30 The appellant also asserts that her first -level supervisor, whom she claims
was the “architect” of the PIP, had a strong motive to retaliate because the
disclosures exposed the supervisor’s instruction to the AUSA not to report the ex
parte communications to the court and thereby reflected negatively on her
supervisory abilities. PFR File, Tab 3 at 14 -15. The appellant asserts that other
officials were motivated to retaliate because a Professional Responsibility Officer
concluded that the ex parte communicat ions must be brought to the court’s
attention, the California rule in question is stringent and requires revealing such
communications promptly, and many agency officials were involved in
discussions regarding the matter for several weeks. Id. at 15 -16.
¶31 The administrative judge addressed these arguments, finding that although
the appellant asserted that the agency had a motive to retaliate because her
disclosures might “bring to light ethical lapses of several AUSAs and
supervisors, ” ID at 29, the “entire matter had concluded, with no ill effect on
anyone, by mid -April [2008] when the contact was reported to the court,” several
months before the appellant’s July 2008 placement on a PIP, and the appellant’s
first-level supervisor testified that “no one could get in trouble” as a result of the
appellant’s disclosure to PRAO , ID at 32. Further, the appellant has shown no
error in the administrative judge’s determination that, because PRAO merely
gives advice or suggestions, no AUSA would fear its involvement i n their cases.
ID at 33. In any event, the appellant’s disclosure s did not reveal any alleged
misconduct by her first -level supervisor. Rather, her disclosures merely informed
PRAO and her second -level supervisor that the matter had not been reported to
the court by the AUSA despite a possible ethical responsibility by him to do so.
Although a Professional Responsibility Officer ultimately concluded that the
24
ex parte communications must be brought to the court’s attention, and although
many agency offic ials were involved in discussing the matter for several weeks,
these facts do not demonstrate error in the administrative judge’s analysis.
¶32 The appellant further asserts that an Executive Assistant U.S. Attorney
(EAUSA) who dealt with personnel issues fo r the U.S. Attorney, ID at 22, and
who corresponded with the appellant’s first -level supervisor regarding the
appellant’s performance , indicating that a PIP was the “right direction” to take
and “in order” for the appellant, W -2 AF, Tab 7, OSC Ex . 11, Tab 8, OSC Ex. 32,
also had a motive to retaliate because her involvement in the matter and rush to
place the appellant on the PIP departed from the agency’s normal process, and her
knowledge of the appellant’s performance deficiencies came from the first -level
supervisor, PFR File, Tab 3 at 16-17. The appellant testified that, even if the
EAUSA did not know directly of the disclosures before the appellant’s placement
on the PIP, the first -level supervisor told her of the appellant’s contact with
PRAO within moments of learning of it . Id. at 17.
¶33 The appellant has not, however, shown that the administrative judge erre d
when he found that the EAUSA was a “very reasonable, articulate, and
straightforward witness” who testified that she made the above statements
regarding the appropriateness of a PIP for the appellant before she became aware
of the appellant’s disclosures . ID at 27 -28. In addition , the appellant has not
explained how the EAUSA rushed the appellant’s placement on a PIP and what
departure from the “normal” process was involved, aside from asserting that
informal measures were not used . W-2 AF, Tab 4 at 18 -21. We note that the
EAUSA had asked the agency’s Office of General Counsel about placing the
appellant on a PIP in April 2007, eleven months before the appellant made her
disclosures and over 1 year before the July 2008 PIP, ID at 27; W -2 AF, Tab 8,
OSC Ex. 65, and that the agency had a long history of concerns regarding the
appellant’s performance prior to her disclosures , ID at 18-29. In addition , despite
the appellant’s contention that the EAUSA learned of the appellant’s disclosure
25
within minutes af ter the appellant’s first -level supervisor learned of the
disclosures —which the administrative judge found was before the appellant’s
placement on the PIP, ID at 12—the EAUSA actually stated during her sworn
investigatory interview with the Office of Speci al Counsel that she learned that
the appellant had contacted PRAO long after the appellant’s July 2008 placement
on the PIP. W -2 AF, Tab 12, OSC Ex . 173 at 22, 25, 29 -30. Although the
EAUSA indicated that she thought the first -level supervisor first lear ned of the
appellant’s disclosures “within minutes of calling me,” she also testif ied that she
did not remember whether the first -level supervisor told her of when she learned
of the disclosures; she did not know how the first -level supervisor knew that it
was the app ellant who made the disclosures; and the Office of Special Counsel
would have to ask the first -level supervisor to confirm such information. Id.
at 29-31.
¶34 The appellant also asserts that her first -level supervisor and another
manager who helpe d supervise the PIP determined that the appellant showed poor
judgment in making the disclosures, and that the administrative judge mentioned
these statements but did not draw the necessary inference that such a negative
opinion showed a motive to retaliat e. PFR File, Tab 3 at 18. The appellant
further contends that, while the administrative judge recognized that the fellow
AUSA was annoyed and concerned by the appellant’s disclosures, he was more
than simply annoyed and concerned because he investigated the source of the
disclosures, angrily confronted the appellant when he learned that she had made
them, and told another AU SA that the appellant was the “culprit” and that the
disclosures might alter his relationship with the appellant. Id. at 18 -19. The
appellant asserts that it is “highly likely” that the AUSA influenced her placement
on a PIP and subsequent termination be cause he “planned” to discuss the matter
with the appellant’s first -level supervisor, who was his friend. Id. at 19.
¶35 Although the appellant contends that agency officials were motivated to
retaliate because they indicated that the appellant showed “poor j udgment” in
26
making her disclosures, one of th ose references was made by one of the trial
attorneys in the criminal case to the other AUSA when she noted that the
appellant had contact ed PRAO on a case that was not assigned to her and without
having all of the relevant information. W -2 AF, Tab 11, OSC Ex . 166. A
manager who reviewed the appellant’s performance during the PIP with the
appellant’s first - and second -level supervisors testified that the appellant’s
decision to contact PRAO showed poor judgment because he thought that the
nature of the contact between the defense attorney and the juror was trivial, i.e.,
saying “Good morning” and “How are you?” to jurors at a coffee shop. HT
at 187-88, 204 (testimony of the nonsupervisory AUSA). This evidence , which
suggests that a coworker and a manager who was not the appellant’s supervisor
may have disagreed with or been disturbed by the disclosures , does not show that
the officials who placed the appellant on a PIP, proposed her removal, and issued
a decisi on letter shared in those beliefs or harbored any motive to retaliate against
her. The administrative judge addressed these issues , finding that the AUSA had
no role in the PIP or subsequent agency actions, and that the individuals who did
take the person nel actions were not annoyed by the disclosures and otherwise had
only a weak motive to retaliate. ID at 32 -34. The appellant has not shown that
the administrative judge erred in evaluating the countervailing evidence in
support of her position. Her spe culation that it was “highly likely” that the fellow
AUSA influenced the appellant’s first -level supervisor to place the appellant on a
PIP because he “planned” to discuss the matter with the supervisor, who was his
friend, does not show that he discussed the matter with the supervisor or
otherwise influenced her, nor does it show that the administrative judge erred in
finding that the agency’s motive to retaliate was not strong . ID at 34.
¶36 Next, t he appellant asserts that the administrative judge did not address the
close temporal proximity between her disclosures and the personnel actions ,
given that the agency began discussing and taking steps to place her on a PIP less
than 1 week after learning of the disclosures. PFR File, Tab 3 at 19 -20. The
27
appell ant contends that, although the administrative judge acknowledged this
temporal proximity in his contributing factor analysis, he did not consider it in his
analysis of the agency’s motive to retaliate. Id. at 20.
¶37 Despite the appellant’s contentions, the administrative judge did address the
appellant’s claim concerning the timing of her placement on a PIP. ID a t 18. The
administrative judge noted that there was significant evidence that the appellant’s
supervisors were concern ed about her performance for years and had become
increasingly concerned in the year leading up to the 2008 PIP. ID at 18-29. In
addition, the administrative judge found that the appellant’s place ment on a PIP
coincided with an office reorga nization in February 2008 that resulted in a change
in supervisors for the appellant and other AUSAs and a more coordinated
approach to addressing the appellant’s performance issues. ID at 21, 25. The
administrative judge noted that this change resulted in supervisors having to
supervise only 8 attorneys rather than 17, and that the appellant’s new first -level
supervisor had more of a “micromanaging” style and was less lenient than her
former supervisor. ID at 25 -26. The administrative judge noted that these
management changes took place before the appellant made her disclosures. ID at
26. The appellant has shown no error in these findings by the administrative
judge.
¶38 The appellant further contends that the administrative judge erroneously
required he r to show harm in order to establish a motive to retaliate, incorrectly
interpreting the Board’s decision in Schmittling v. Department of the Army ,
81 M.S.P.R. 225 , 238 (199 9), vacated on other grounds , 219 F.3d 1332 (Fed. Cir.
2000) . PFR File, Tab 3 at 21. The appellant asserts that the Board’s decision in
Schmittling addressed whether the acting officials were either harmed or
disturbed by the disclosures. Id. The appellant claims that the agency officials in
this case were at least disturbed by the disclosures and faced potential harm. Id.
¶39 In discussing the existence and strength of any motive to retaliate by the
agency officials who were involved in the person nel actions, the administrative
28
judge noted that “[t]here generally must be a showing of harm – i.e., that the
supposed retaliators were harmed by the employee’s protected disclosure. See
Schmittling v. Department of the Army , 81 M.S.P.R. 225 , 238 (1999).” ID at 29.
The administrative judge found that “[h]ere, there is no such evidence ,” and
supported this finding with an ext ensive analysis of testimonial evidence
presented by agency witnesses. Id. at 29 -34. Thus, a lthough the appellant
appears to suggest that the administrative judge improperly placed the burden on
her of showing no motive to retali ate, we disagree. In any event, i n
Schmittling , 81 M.S.P.R. at 238, the Board held that there was no strong motive
to retaliate because the agency presented unrebutted evidence that the appellant’s
superiors “were neither harmed nor disturbed by the disclosures.” To the extent
that the administrative judge focused only on whether the acting officials were
harmed by the disclosures, such an analysis would be inconsistent with
Schmittling . Nevertheless, despite his incorrect ly stating the holding in
Schmittling , we find that the a dministrative judge otherwise correctly analyzed
the existence and strength of any motive to retaliate in this case.
The administrative judge considered whether the appellant’s disclosures angered,
annoyed, or concerned any of the acting officials or individuals who may have
influenced th ose officials , i.e., disturbed them, finding that the existence and
strength of any motive to retaliate was weak. ID at 29 -34. Thus, we find that the
administrative judge did consider whether any of the relevant official s in this case
were harmed or disturbed by the appellant’s protected disclosures , or otherwise
had a personal or professional motive to retaliate against her . See Robinson ,
923 F.3d at 1019 -20; Panter v. Department of the Air Force , 22 M.S.P.R. 281 ,
282 (1984) ( finding that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis fo r revers ing an initial decision).
¶40 We acknowledge that the acting officials may have had some motive to
retaliate, even if they were not directly implicated by the appellant’s disclosures,
to the extent that any criticism reflected on them or others in thei r capacities as
29
agency managers and employees. Thus , the evidence regarding the second Carr
factor does not unfailingly support the agency. See Miller , 842 F.2d at 1262.
Nevertheless, given the administrative judge’s explained and supported findings
as to why any motive to retaliate was not strong, his reliance on the testimony of
numerous witnesses to that effect , some of whom he found to be credible based
explicitly on their demeanor , ID at 27, 32 -33, and his discussion of evidence
supporting the opposite result, such as the testimony of an AUSA who was
“annoyed/concerned” about the appellant’s disclosures, ID at 31, 33 -34, we
conclude after consideration of the evidence as a whole that this factor ultimately
tips in the agency’s favor. See Robins on, 923 F.3d at 1019 -20; Haebe , 288 F.3d
at 1301 (requiring the Board to give deference to credibility determination s when
they are based, explicitly or implicitly, on the demeanor of witnesses ).
The agency t ook similar actions against similarly situated employee s who
were not whistleblowers.
¶41 Finally, the appellant contends that the agency did not submit evidence
corroborating the testimony of agency officials that it had taken similar actions
against three other employees who were similarly situated to the appellant.
PFR File, Tab 3 at 27 -28. The appellant asserts that the agency did not present
evidence showing the length of service, work units, disciplinary standards,
performance records, and disciplinary history of the other AUSAs who were
placed on PIPs. Id. at 28 -29. The appellant contend s that the three comparators
were treated differently from her because they either resigned or passed the PIP
and continued working for the agency. Id. at 29.
¶42 The administrative judge found, based on the uncontested testimony of two
witnesses, including t he testimony of the EAUSA whom he found to be
particularly credible, that the agency took similar actions against employees who
were not whistleblowers but who were otherwise similarly situated to the
appellant. ID at 27, 34 -35. The appellant has provide d no support for her
apparent contention that testimonial evidence concerning an agency’s trea tment
30
of similarly situated non whistleblowers must be corroborated by written evidence.
Thus, we find no basis to disturb the initial decision in this regard.
¶43 Moreover, as the court explained in Whitmore , 680 F.3d at 1373, “the
requisite degree of similarity between employees cannot be construed so narrowly
that the only evidence helpful to the inquiry is completely disregarded.” Here the
agency submitted evidenc e of three other AUSAs who were not whistleblowers,
struggled with performance issues , and were eventually placed on a PIP during
the tenure of the U.S. Attorney and the EASUA. The fact that two of the
individuals who were placed on a PIP chose to resign and one individual
improved her performance and passed the PIP , HT at 1685 -88 (testimony of the
EAUSA), does not indicate that they were treated differently from the appellant.
In fact, the U.S. Attorney testified at the Board hearing that, midway through the
PIPs, he informed both the appellant and one of the AUSAs who resigned that
they were not improving, that they would fail the PIP if it ended the next day , and
that they should consider their options, including a voluntary resignation. HT
at 1812 -13 (testimony of the U.S. Attorney).
¶44 Having considered the evidence in the record as a whole, we are left with
the firm belief that the agency would have placed the appellant on a PIP,
proposed her removal, and issued a removal decision letter absent he r protected
disclosures . Accordingly, we deny the petitions for review filed by the appellant
and the intervenor and the cross petition for review filed by the agency. The
appellant’s request for corrective acti on in this IRA appeal is denied.
NOTICE OF APPEAL RIGHTS11
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
11 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropri ate in any matter.
31
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
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of iss uance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. O f particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
32
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the s ervices provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affec ted by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civi l action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your represent ative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, n ational origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
33
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEO C via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protect ed activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited p ersonnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or a ny court of appeals of
competent jurisdiction.12 The court of appeals must receive your petition for
12 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the Pres ident on
34
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained wi thin the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for inf ormation regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case .
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 j urisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
35
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CARVALHO_SHERRILL_A_SF_1221_15_0208_W_2_FINAL_ORDER_1991790.pdf | 2023-01-10 | null | SF-1221 | NP |
3,830 | https://www.mspb.gov/decisions/nonprecedential/BARRION_ANASTACIO_E_SF_0831_20_0636_I_1_FINAL_ORDER_1990891.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANASTACIO E. BARRION ,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
SF-0831 -20-0636 -I-1
DATE: January 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rufus F. Nobles, I , Zambales, Philippines, for the appellant.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Cha irman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) denying the appellant’s request for annuity benefits under the Civil
Service Retirement System (CSRS) . Petition for Review (PFR) File, Tab 1.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
Subsequently, the appellant decided to withdraw his petition and submitted letters
to that effect, to which the agency did not object. PFR File, Tab s 8, 10.
¶2 Finding that withdrawal is appropriate under these circumstances, we
DISMISS the petition for revi ew as withdrawn with prejudice to refiling. The
initial decision of the administrative judge is final. Title 5 of the Code of Federal
Regulations, section 1201.113 ( 5 C.F.R. § 1201.113 ).
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 ap propriate 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 whi ch 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
immedi ately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of th e three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
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
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
4
you 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:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
5
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 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 are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | BARRION_ANASTACIO_E_SF_0831_20_0636_I_1_FINAL_ORDER_1990891.pdf | 2023-01-06 | null | SF-0831 | NP |
3,831 | https://www.mspb.gov/decisions/nonprecedential/MCCARDLE_TREVOR_SF_0752_15_0230_I_1_FINAL_ORDER_1990917.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TREVOR MCCARDLE,1
Appellant,
v.
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSI ON,
Agency.
DOCKET NUMBER
SF-0752 -15-0230 -I-1
DATE: January 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL2
Cori M. Cohen , Esquire, Stephanie M. Herrera , Esquire and Holly V.
Franson , Esquire, Silver Spring, Maryland, for the appellant.
1 The Board took official notice that Mr. McCardle died on August 4, 2019, while the
petition for review and cross petition for review were pending, and it issued a show
cause order that invited the parties to file a motion for substitution. Petition for Review
(PFR) File, Tab 26. In response to the show cause order, the appellant’s attorney filed a
motion for substitution, which requests that Yolanda Acuna, Mr. McCardle’s sole
beneficiary, be substituted in his place. PFR File, Tab 27. The motion includes a
California death record from Lexis -Nexis, and a declaration made under penalty of
perjury from Ms. Acuna. Id. at 7-9. If an appellant dies, the processing of an appeal
will only be completed upon substitution of a proper party. 5 C.F.R. § 1201.35 (a).
Motions to substitute must be filed with the Board within 90 days after the death of a
party except for good cause shown. 5 C.F.R. § 1201.35 (b). The appellant’s attorney
filed the motion for substitution on March 24, 2022, which was more than 90 days after
Mr. McCardle’s death. However, in the absence of a timely substitution of a party, the
processin g of an appeal may continue if the interests of the proper party will not be
prejudiced. 5 C.F.R. § 1201.35 (c). No such prejudice exists here, and the agency has
not opposed the motion; thus, we find it appropriate to continue with the processing of
this appeal. Both Ms. Acuna and Mr. McCardle will be referred to as “the appellant.”
2 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Leroy T. Jenkins, Jr. , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The agency has filed a petition for review and the appellant has filed a cross
petition for review of an initial decision that reversed the imposition of the
indefin ite suspension and found that the appellant did not prove his affirmative
defenses of a Fourth Amendment violation and reprisal for whistleblowing and
equal employment opportunity (EEO) activity. Generally, we grant petitions such
as these only in the fol lowing 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 administra tive 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 l egal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that neither party
has established any basis under section 1201.115 for granting the petition or cross
petition for review. Therefore, we DENY the petition for review and the c ross
petition for review. We MODIFY the initial decision to clarify the grounds for
reversing the suspension, to address the agency’s argument regarding the
appellant’s pending U.S. district court case, and to supplement the administrative
3
judge’s analysi s of the reprisal claims. Except as expressly MODIFIED by this
Final Order, we AFFIRM the initial decision and REVERSE the suspension.
BACKGROUND
¶2 The relevant background information, as recited in the initial decision, is
generally undisputed. Initial Ap peal File (IAF), Tab 74, Initial Decision (ID).
On September 5, 2014, the appellant, a Paralegal Specialist, stated to a coworker
that he was “going to f ucking kill someone.” ID at 1 -2, 16. On September 19,
2014, the appellant sent an email to the entir e agency in which he criticized his
supervisors and the agency’s processing of his EEO complaint, among other
things. ID at 9; IAF, Tab 11 at 4 -8. Management received complaints from the
appellant’s colleagues who expressed fear and concern regarding his hostile,
intimidating, and disruptive behavior. ID at 16 (citing IAF, Tab 10 at 207 -08).
On September 23, 2014, a Federal Protective Service (FPS) officer inspected the
appellant’s office and discovered a box cutter in his backpack. ID at 16; IAF,
Tab 10 at 207, 209. On September 29, 2014, the agency placed him on paid
administrative leave to obtain a psychological/psychiatric evaluation. ID at 2.
The administrative leave notice advised the appellant that the agency “must
receive documentation from a qualified medical professional verifying that [his]
presence in the workplace does not pose a danger to [himself] or others,” and it
included a medical questionnaire. ID at 2, 8 (emphasis omitted); IAF, Tab 9
at 63-66. The appellant did not provide any documentation to the agency in
response to this notice. ID at 3.
¶3 On October 17, 2014, the agency proposed to indefinitely suspend the
appellant. ID at 3. The proposal notice stated that the appellant had been
instructed to obtain a psychological or psyc hiatric evaluation before he could
return to duty and advised that the agency would not return him to duty “pending
the results from a qualified medical professional that his presence in the
4
workplace does not pose a danger to [himself] or others.” Id.; IAF, Tab 10
at 207-08.
¶4 The appellant submitted a November 17, 2014 letter from his treating
psychiatrist, who stated, among other things, that the appellant “does not pose any
threat to himself or others from his medical condition.” ID at 3 -4 (emphasis
omitted). The agency determined that the information provided by the appellant
failed to specifically address the questions in the medical questionnaire, and it
indefinitely suspended him without pay, effective December 28, 2014, “pending a
determination bas ed on the results of the [m]edical [q]uestionnaire from a
qualified psychologist/psychiatrist.” ID at 4; IAF, Tab 5 at 21 -24.
¶5 The appellant filed a Board appeal challenging the imposition of the
indefinite suspension and requested a hearing. ID at 1.3 The appellant later
withdrew his hearing request. Id. The administrative judge did not sustain the
indefinite suspension because he found that the appellant satisfied the condition
subsequent for bringing the suspension to an end by submitting the Novem ber 17,
2014 document from his psychiatrist (a qualified medical professional), who
stated that the appellant’s presence in the workplace did not pose a danger to
himself or others. ID at 5 -7. The administrative judge alternatively found that,
even if th e agency proved the merits of the action, the action could not be
3 The appellant filed a second Board appeal in April 2015, challenging the improper
continuation of the indefinite suspension after the agency received, among other things,
a second letter from his psychiatrist. The administrative judge did not sustain the
agency’s action, and both parties challenged the administrative judge’s decision on
review. See McCardle v. Equal Employment Opportunity Commission , MSPB Docket
No. SF -0752 -14-0496 -I-1. The agency subsequently removed the appellant and, after
he appealed, the administrative judge sustained the agen cy’s action. McCardle v. Equal
Employment Opportunity Commission , MSPB Docket No. SF -0752 -16-0689 -I-3. The
appellant also filed an individual right of action appeal in which the administrative
judge denied his request for corrective action. McCardle v. Equal Employment
Opportunity Commission , MSPB Docket No. SF -1221 -17-0270 -W-2. The appellant
petitioned for review of those initial decisions. The Board issued a decision on
December 7, 2022, in MSPB Docket No. SF -0752 -16-0689 -I-3 and will issue separate
decisions in the other two appeals.
5
sustained on due process grounds because the agency failed to apprise the
appellant that the indefinite suspension could be imposed without the completed
medical questionnaire. ID at 8 -9. The administrative judge further found that the
appellant did not prove his affirmative defenses of a Fourth Amendment violation
and reprisal. ID at 9 -19.4
¶6 The agency has filed a petition for review, the appellant has filed a
response, and the agency ha s filed a reply brief. Petition for Review (PFR) File,
Tabs 3, 13 -14. The appellant has filed a cross petition for review, the agency has
filed a response, and, with the Board’s permission, the appellant has filed a reply
brief. PFR File, Tabs 15 -16, 18 , 20, 22.
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 In its petition for review, the agency argues that the administrative judg e
made the following mistakes: (1) he erroneously concluded that the appellant met
the condition subsequent specified in the proposal no tice; (2) he failed to address
the preclusive effect of the appellant’s subsequent U.S. district court matter; and
(3) he erred when he found that the agency violated the appellant’s due process
rights. PFR File, Tab 3 at 4 -6, 16 -25. In his cross petitio n for review, the
appellant asserts that the administrative judge wrongly decided his reprisal
4 The appellant’s claim of a Fourth Amendment violation involved the search of his
office and discovery of the box cutter in his backpack. ID at 18 -19. In the initial
decision, the administrative judge noted that the Board has found that the exclusionary
rule is inapplicable to situations where law enforcement officials seize evidence, and he
found that F PS officers made the decision to search the appellant’s office and backpack,
the search was executed, and the items were returned to the appellant. Id. (citing Delk
v. Department of the Interior , 57 M.S.P.R. 528 (1993). The appellant does not
challenge the administrative judge’s factual find ings in this regard or the conclusion
that he did not prove this claim. We affirm the administrative judge’s analysis and
conclusion herein. See, e.g. , Fahrenbacher v. Department of Veterans Affairs ,
89 M.S.P.R. 260 , ¶ 14 n.5 (2001) (noting that the exclusionary rule derived from the
Fourth Amendment protection against unlawful search and seizure does not apply to
administrati ve proceedings).
6
affirmative defenses and failed to address his disability discrimination claim.
PFR File, Tab 15 at 14 -33.
The indefinite suspension must be reversed.
¶8 The adm inistrative judge made the following findings in the initial decision:
(1) the only condition subsequent identified in the proposal notice was a
statement from a qualified medical professional opining that the appellant’s
presence in the workplace did not pose a danger to himself or to others; (2) the
November 17, 2014 statement from the appellant’s treating psychiatrist satisfied
this condition subsequent; and (3) the agency did not have a basis to impose the
indefinite suspension. ID at 5 -7. On review, neither party challenges the
administrative judge’s use of the “condition subsequent” analytical standard.
However, we find its use awkward here because the administrative judge
essentially found that the appellant satisfied the condition subsequent prior to the
imposition of the indefinite suspension.
¶9 Instead, we find it appropriate to utilize the analytical standard described in
Moe v. Department of the Navy , 119 M.S.P.R. 555 (2013), because of the similar
circumstances and chronology. The appellant in Moe was briefly hospitalized on
June 3, 2011, because he was exhibiting odd behavior at work, and he was cleared
by his personal psychiatrist to return to work without any restrictions on June 7,
2011. Id., ¶ 2. On July 15, 2011, the agency ordered the appellant to report for a
fitness -for-duty (FFD) psychiatric examination, and, based on the examining
doctor’s report, the agency placed him on paid administrative leave, proposed to
suspend him indefinitely, and ordered him to submit to an independent
psychological evaluation. Id., ¶¶ 3-4. Ultimately, the appellant was indefinitely
suspended on September 24, 2011, but the agency r estored him to duty on
November 7, 2011. Id., ¶¶ 4-6.
¶10 In Moe , the Board found, in pertinent part, that the agency did not have a
sufficient objective basis for indefinitely suspending the appellant because, prior
7
to the decision to order him to take an FFD psychiatric evaluation, he had a
medical release to return to work without restrictions, there were no other
incidents upon his return to work, and his supervisor indicated that he had
performed fully successful work and worked well with others during this period.
Id., ¶ 14.5 Therefore, the Board reversed the indefinite suspension. Id.
¶11 Applying the legal standard described in Moe , rather than the “condition
subsequent” framework set forth in the initial decision, we find that a different
outcome is not warranted. We agree with the administrative judge’s ultimate
conclusion that the agency did not have a basis to impose the indefinite
suspension because, prior to imposing the suspension, it had the November 17,
2014 documentation, which essentially i ndicated that the appellant was fit for
duty. We therefore affirm the administrative judge’s decision to reverse the
indefinite suspension based on our finding that the agency failed to prove that it
had a sufficient objective basis to suspend the appella nt at the time it imposed the
suspension.6
The appellant did not prove his affirmative defense of reprisal for whistleblowing
disclosures or other protected activity under 5 U.S.C. § 2302 (b)(8)-(9).
¶12 Under the Whistleblower Protection Enhancement Act of 2012 (WPEA), a
prohibited personnel practice affirmative defense asserted in a chapter 75 appeal
that independently could form the basis of an individual right of action (IRA)
appeal must be an alyzed under the burden -shifting scheme set forth in 5 U.S.C.
5 The Board in Moe also concluded that the agency did not have the authority to order
the appellant to undergo an FFD evaluation because his Rigger Apprentice position did
not have medical standards or physical requirements, nor was it par t of an established
medical evaluation program. Moe , 119 M.S.P.R. 555 , ¶¶ 10-13. To the extent that the
appellant argues on review that the agency’s medical inquiries were improper, e.g., PFR
File, Tab 15 at 20 -24, Tab 22 at 4 n.1, we need not address this argument because we
have reversed the indefinite suspension on other grounds .
6 Because we affirm the administrative judge’s deci sion to reverse the imposition of the
indefinite suspension, we need not address the agency’s arguments regarding the
alternative due process analysis. PFR File, Tab 3 at 20 -21.
8
§ 1221 (e). Alarid v. Department of the Army , 122 M.S.P.R. 600, ¶ 12 (2015); see
5 U.S.C. § 1221 (e), (i ). Prior to the WPEA, a covered employee could only bring
an IRA appeal for personnel actions taken or proposed to be taken as a result of a
prohibited personnel practice described in 5 U.S.C. § 2302(b)(8), concerning
reprisal for whistleblowing disclosures. Alarid , 122 M.S.P.R. 600, ¶ 12. The
WPEA expanded the grounds on which an IRA appeal may be filed with the
Board. Id. Post -WPEA, an employee also may file an IRA appeal based on
reprisal for certain other classes of protected activity as defined in 5 U.S.C.
§ 2302 (b)(9)(A)(i), (B), (C), and (D). Id.
¶13 An appellant asserting such an affirmative defense of reprisal for
whistleblowing or other protected activity must show, by preponderant evidence,7
that he made a protected disclosure pursuant to 5 U.S.C. § 2302 (b)(8) or engaged
in protected activity as defined in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), and (D)8
and the disclosure or protected activ ity was a contributing factor in the personnel
action(s). Ayers v. Department of the Army , 123 M.S.P.R. 11, ¶ 12 (2015);
Alarid , 122 M.S.P.R. 600, ¶ 12; see 5 U.S.C. § 1221 (e)(1). If the appellant
establishes a prima facie case of such reprisal, then the burden of persuasion
shifts to the agency to show by clear and convincing evidence that it would have
taken the same personnel action(s) absent any whistleblowing disclosure or
protected activity. Ayers, 123 M.S.P.R. 11, ¶ 12; Alarid , 122 M.S.P.R. 600, ¶ 12;
see 5 U.S.C. § 1221 (e)(2).
¶14 The appellant asserte d below that his September 19, 2014 email, entitled
“Help Needed –EEOC Los Angeles Legal Unit Under Poor Management,”
contained protected disclosures. IAF, Tab 54 at 6. The administrative judge
determined that the email was related to his EEO matters, was covered by
7 Preponderant evidence is the degree o f relevant evidence that a reasonabl e 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).
8 Subsections 2302(b)( 9)(B), (C), and (D) are not implicated by the facts of this appeal.
9
5 U.S.C. § 2302 (b)(1) and (b)(9), and therefore was excluded from coverage
under 5 U.S.C. § 2302 (b)(8). ID at 9 -11 (citing Spruill v. Merit Systems
Protection Board , 978 F.2d 679 (Fed. Cir. 1992), and Applewhite v. Equal
Employment Opportunity Commission , 94 M.S.P.R. 300 (2003)).9 It is true that
several of the appellant’s allegations in the September 19, 2014 email appear to
overlap with the all egations in his EEO matter. Compare IAF, Tab 11 at 4 -8,
with IAF, Tab 68 at 107 -19. However, the administrative judge should have
considered whether the appellant established reprisal for protected activity under
5 U.S.C. § 2302 (b)(9)(A)(i), which prohibits reprisal for the exercise of any
appeal, complaint, or grievance right granted by any law, rule, or regulation
regarding remedying a violation of 5 U.S.C. § 2302 (b)(8). 5 U.S.C. § 1221 (a),
(e); see Colbert v. Department of Veterans Affairs , 121 M.S.P.R. 677, ¶ 7
(2014).10 Because the administrative judge did not discuss the potential
applicability of the WPEA, and section 2302(b)(9)(A)(i) in particular, we modify
the initial decision to supplement his analysis of this claim.
¶15 To determine whether the appellant’s September 19, 2014 email is activity
protected by 5 U.S.C. § 2302 (b)(9)(A)(i ), we must determine if it constitutes the
“exercise of any appeal, complaint, or grievance right.” The Board has held that
an employee’s initial step toward taking legal action against an agency for a
perceived violation of employment rights constitutes the exercise of any appeal,
9 Relevant to this matter, before the enactment of the WP EA, 5 U.S.C. § 2302 (b)(9)
made it a prohibited personnel practice to ret aliate against an employee or an applicant
for employment “because of . . . the exercise of any app eal, complaint, or grievance
right granted by any law, rule, or regulation.” A claim of reprisal for such activity did
not fall under the Board’s IRA appeal jurisdiction. Linder v. Department of Justice ,
122 M.S.P.R. 14 , ¶ 7 (2014).
10 Although the appellant did not explicitly assert below that this email constituted
protected activity pursuant to 5 U.S.C. § 2302 (b)(9)(A)(i), he argues in his cross
petition for review that the administrative judge should have determined whethe r the
statements in his email were covered by section “2302(b)(9)(A).” PFR File, Tab 15
at 28 n.10. We agree that he alleged sufficient facts below to warrant consideration of
such a claim.
10
complaint, or grievance right. See Graves v. Department of Veterans Affairs ,
123 M.S.P.R. 434, ¶¶ 11-18 (2016) (finding that an investigation by an agency’s
Administrative Investigation Board was outside of the procedures that fall within
the protection of section 2302(b)(9)(A)(i)); see also Von Kelsch v. Department of
Labor , 59 M.S.P.R. 503, 508 -09 (1993) (concluding that the submission of a
workers’ compensation claim —in contrast to filing a Board appeal, an EEO
complaint, an unfair labor practice complaint, or a grievance —did not constitute
an initial step toward taking legal action against an employer for the perceived
violation of an employee’s rights), overruled on other grounds by Thomas v.
Department of the Treasury , 77 M.S.P.R. 224 (1998), overruled by Ganski v.
Department of the Interior , 86 M.S.P.R. 32 (2000).11 We find that the appellant’s
September 19, 2014 email, which he sent unsolicited to the entire agency and
which chronicles his various complaints against the agency and certain agency
officials, did not constitute an initial step toward taking legal action against the
agency for the perceived violation of his rights. Accordingly, we find that the
appellant’s email did not constitute the “exercise of any appeal, comp laint, or
grievance right,” and it is not protected under 5 U.S.C. § 2302 (b)(9)(A)(i).
¶16 We now turn to whether the email contained disclosures protected by
5 U.S.C. § 2302 (b)(8), which includes a disclosure of information by an employee
that he reasonably believes evidences any violation of any law, rule, or
regulation, gross mismanagement, a gross waste of funds, an abuse of authority,
or a substantial and specific danger to public health or safety. The proper test for
determining if an employee had a reasonable belief that his 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
11 Although Von Kelsch discussed pre -WPEA statutory provisions, the Board has noted
that nothing in the WPEA altered its previous analysis concerning the meaning of the
terms “appeal, complaint, or grievance” in the statutory language. Graves ,
123 M.S.P.R. 434 , ¶ 18.
11
that the actions evidenced one of the categories set forth in 5 U.S.C. § 2302 (b)(8).
Linder , 122 M.S.P.R. 14, ¶ 12.
¶17 The appellant contends that the allegations in his email contained
disclosures unrelated to his discrimination claims, including that someone
“doctored” his personnel records to make his 7 -month detail to the enforcement
unit look like a 90 -day detail, the agency violated the Fair Labor Standards Act
and its own time and attendance policies regarding overtime, and his second -level
supervisor “en gaged in the arbitrary and capricious exercise of power.” PFR File,
Tab 15 at 26 -29. He further asserts that these allegations constitute disclosures
involving a violation of laws, rules, and regulations, gross mismanagement, and
an abuse of authority. Id. at 27 -28. We agree with the appellant that his
allegation of fraud or document tampering involving his personnel records
constitutes a disclosure of a violation of law, rule, or regulation, and therefore it
is protected under 5 U.S.C. § 2302 (b)(8). See, e.g., DiGiorgio v. Department of
the Navy , 84 M.S.P.R. 6 , ¶ 14 (1999) (explaining that some allegations of
wrongdoing, such as theft of Government property or fraudulent claims for pay,
so obviously implicate a violation of law, rule, or regulation, that an appellant
need not identify any specific law, rule, or regula tion that was violated).12
¶18 To prove that a disclosure was a contributing factor in a personnel action,
the appellant only need demonstrate that the fact of, or the content of, the
protected disclosure was one of the factors that tended to affect the perso nnel
action in any way. Carey v. Department of Veterans Affairs , 93 M.S.P.R. 676 ,
¶ 10 (2003). The knowledge/timing test allows an employee to demonstrate that
12 We are not persuaded that the appellant had a reasonable belief that he was disclosing
gross mismanagement in the September 19, 2014 email. See White v. Department o f the
Air Force , 63 M.S.P.R. 90 , 95 (1994) (explaining that gross mismanagement means a
management action or inaction which creates a substantial risk of significant adverse
impact upon the agency’s ability to accomplish its mission). Because we find that he
made a protected disclosure of a violation of law, rule, or regulation, we need not
evaluate whether his disclosure involving time and attendance issues also was protected
and/or whether he disclosed an abuse of authority .
12
the 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 withi n a
period of time such that a reasonable person could conclude that the disclosure
was a contributing factor in the personnel action. Id., ¶ 11; see 5 U.S.C.
§ 1221 (e)(1).
¶19 The appellant has dem onstrated that his email was a contributing factor in
the agency’s decision to impose the indefinite suspension. The knowledge
element is satisfied because the email was sent to the entire agency and the
deciding official specifically referenced the email in the decision letter.
IAF, Tab 5 at 22. The timing element also is satisfied because the agency
proposed and effected the indefinite suspension approximately 1 month and
3 months, respectively, after he sent the email. See Swanson v. General Services
Administration , 110 M.S.P.R. 278, ¶ 12 (2008) (stating that a 2 -3 month interval
between the disclosure and personnel action is su fficiently brief that a reasonable
person could conclude that the disclosure was a contributing factor). Having
found that the appellant satisfied his prima facie burden, we must now evaluate
whether the agency proved by clear and convincing evidence13 that it would have
imposed the indefinite suspension absent the September 19, 2014 email.
¶20 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 Boa rd typically will consider the strength of the agency’s
evidence in support of its action, the existence and strength of any motive to
retaliate on the part of the agency officials who were involved in the decision,
and any evidence that the agency takes s imilar actions against employees who are
not whistleblowers or who did not engage in protected activity but who are
13 Clear and convincing evidence “is that measure or degree of proof that produces in
the mind of the trier of fact a firm belief as to the allegations sought to be established.”
5 C.F.R. § 1209.4 (e).
13
otherwise similarly situated. See Carr v. Social Security Administration ,
185 F.3d 1318 , 1323 (Fed. Cir. 1999); Alarid , 122 M.S.P.R. 600, ¶ 14. Consistent
with the guidance from the U.S. Court of Appeals for the Federal Circuit, we have
considered all of the pertinent evidence. Whitmore v. Department of Labor ,
680 F.3d 1353 , 1358 (Fed. Cir. 2012).
¶21 Our examination of the evidence relating to the Carr factors favors the
appellant. For example, we have found that the agency did not have a sufficient
objective basis to impose the indefinite suspensi on, supra ¶¶ 8-11, and, therefore,
the first Carr factor favors the appellant. The Carr factor describing the
existence and strength of the agency’s motive to retaliate also favors the appellant
because the email identified the proposing official by name and made several
disparaging comments about agency officials and the agency’s handling of his
EEO matter and the deciding official specifically referenced the email in the
decision letter. IAF, Tab 4 at 22, Tab 11 at 4 -8; see Whitmore , 680 F.3d at 1370
(“Those responsible for the agency’s performance overall may well be motivated
to retaliate even if they are not directly implicated by the disclosures, and even if
they do not know the whistleblower personally, as the criticism reflects on them
in their cap acities as managers and employees.”). Finally, the parties agree that
there is no evidence regarding the third Carr factor. PFR File, Tab 15 at 33,
Tab 16 at 32. When the agency fails to introduce relevant comparator evidence,
the third Carr factor cannot weigh in favor of the agency. Smith v. General
Services Administration , 930 F.3d 1359 , 1367 (Fed. Cir. 2019); Siler v.
Environme ntal Protection Agency , 908 F.3d 1291 , 1299 (Fed. Cir. 2018).
¶22 We find, however, that our analysis of the three Carr factors does not
provide f or adequate consideration of the unique contextual background that led
to the agency’s decision to impose the indefinite suspension. Because the Federal
Circuit has held that the Carr factors are “nonexclusive,” Smith , 930 F.3d
at 1365 , we have considered the totality of the circumstances. We find that the
14
agency proved by clear and convincing evidence that it would have imposed the
indefinite suspension absent the September 19, 2014 email.
¶23 Indeed, the decision to impose the indefinite suspension was ba sed on the
appellant’s pattern of unprofessional, erratic, and hostile behavior to management
and his coworkers over a relatively short span of time. IAF, Tab 5 at 22, Tab 69
at 315 -31 (deposition testimony of the deciding official). Significantly, on
September 5, 2014, the appellant told one of his coworkers, K.J., that he was
“going to f ucking kill someone.” IAF, Tab 8 at 272, Tab 69 at 317 (deposition
testimony of the deciding official), 724 (deposition testimony of K.J.). The
appellant separately st ated to K.J. that he was frustrated with being
“disrespected” and “bullied” by A.P. and S.N., and he said that if he could “take
anybody out,” it would be them. IAF, Tab 8 at 272, Tab 69 at 704, 720 -24
(deposition testimony of K.J.). Additionally, the ap pellant became verbally
combative during meetings, and disrespectful and unprofessional towards
supervisors and coworkers. IAF, Tab 9 at 79 -80; see, e.g. , id. at 201 (stating in a
September 12, 2014 email to A.P., S.N., and his coworkers that he would be using
sick leave for the rest of the day and telling A.P. and S.N. not to “burden [his]
coworkers with extra work, under the false pretense that [he] left some of [his]
unfinished”), 202 (stating in a September 16, 2014 email to A.P., S.N., and his
coworke rs that he was using sick leave and telling A.P. and S.N. “not [to] burden
[his] coworkers with extra work”), Tab 50 at 30 -31 (deposition testimony of
N.A.) (stating that the appellant came into her office, closed the door, and told
her that he had filed a grievance against the agency because he believed that he
should have been selected for the attorney position that she occupied). K.J.,
himself a military veteran, and someone who considered himself a “friend” to the
appellant, testified that he became in creasingly concerned that the appellant’s
“frustration was building to a point to where [he was] no longer thinking
15
rationally” and he talked to A.P. about his concerns.14 IAF, Tab 69 at 712-13,
719-20, 724, 740 -41 (deposition testimony of K.J.); see IAF, Tab 50 at 71
(deposition testimony of S.N.) (stating that she “considered not parking where
[she] normally park[ed] because of [the appellant’s] bizarre behavior, his
belligerence, [and his] open hostility,” which also made her “look over [her]
shoulder wh en [she walked] to [her] car at night”).
¶24 Then, on September 19, 2014, the appellant sent the unsolicited
agency -wide email, which was sent in violation of agency policies and which
contained details about his personal grievances against various agency empl oyees.
IAF, Tab 11 at 4 -8. As described in the decision letter and the testimony of the
deciding official, as a result of this email, several of the appellant’s coworkers
“reported their concerns, fears, and anxiety over the content of [his] email as wel l
as [his] recent erratic and disruptive behavior” and requested to be out of the
office when the appellant was present. IAF, Tab 5 at 22, Tab 69 at 373 -74
(deposition testimony of the deciding official); see, e.g. , IAF, Tab 69 at 248 -49
(deposition testi mony of A.P.) (stating that four female employees, N.A., L.W.,
R.W., and S.N., contacted her after the appellant sent the email, and describing
these coworkers as “afraid or apprehensive,” “highly agitated,” “afraid,” and
“express[ing] apprehension and fea r,” respectively).15 Taken together, the serious
14 A.P. later became the proposing official. IAF, Tab 10 at 207 -08.
15 There appeared to be nearly universal concern in the appellant’s work unit after he
sent this email. For example, N.A. testified that the appellant’s email was “alarm[ing]”
because he called the legal unit a “little girl’s club” a nd she was a petite woman, and
other details in the email indicated to her that he was “at the end of [his] rope,” he
“seemed extremely desperate,” and he “was out of options.” IAF, Tab 50 at 31
(deposition testimony of N.A.). S.N. testified that the app ellant’s “manifesto” was
“disturbing” and made her “afraid.” Id. at 71 (deposition testimony of S.N.).
A.P. testified that she was “concerned” by the email because of how it affected her staff
and she was also concerned that the appellant seemed “helples s.” IAF, Tab 69
at 243-44 (deposition testimony of A.P.). R.W. testified that the appellant’s demeanor
earlier that day coupled with the agency -wide email made her “afraid.” Id. at 639 -43
(deposition testimony of R.W.). K.J. also testified that the ema il “solidified” his
concerns about the appellant. Id. at 741 (deposition testimony of K.J.). Finally, L.W.
16
nature of these allegations and the fear and concerns expressed by numerous
employees in the appellant’s work unit regarding the appellant’s behavior and
actions justifies the agency’s concern about the appe llant’s continued presence in
the workplace, notwithstanding the flawed execution of its action.16 We are left
with a firm belief that the agency would have indefinitely suspended the appellant
absent the September 19, 2014 email.17
¶25 For the first time on re view, the appellant asserts that a January 2, 2014
email sent by an agency administrative judge to the Inspector General “on [his]
behalf” constituted “protected whistleblowing activity.” PFR File, Tab 15 at 13
n.3, 27. The appellant did not specifically identify this correspondence as part of
his whistleblowing reprisal claim in his prehearing submission or closing brief
below, IAF, Tabs 54, 69, and we could not independently find this
correspondence in the record. 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 appellant has not met this burden, and we will not further consider this
argument on review.
The appellant did not prove his affirmative defens e of reprisal for EEO activity.
¶26 In his analysis of the claim of reprisal for EEO activity, the administrative
judge only discussed the appellant’s July 12, 2013 formal EEO complaint, in
testified that she was “uncomfortable” and “overwhelmed” because of the conflict in the
office . Id. at 779-80 (deposition testimony of L.W.).
16 Importantly, the deciding official testified that she considered the fact that FPS found
a box cutter in the appellant’s possession at work, but it was not critical to her decision
because the appellant’s explanation, that he may need it for his bicycle, “ made some
sense” and was “a legitimate reason.” IAF, Tab 69 at 363 -67 (deposition testimony of
the deciding official). Likewise, we accord the discovery of the box cutter little weight
in our analysis.
17 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.
17
which he alleged that he was a victim of harassment based on race and sex
discrimination and reprisal for participating in a mediation with his supervisors.
IAF, Tab 11 at 4 -8, Tab 68 at 107 -19; ID at 11 -18. The administrative judge
determined that the appellant failed to present any direct evidence to support his
contenti on that his EEO complaint was a motivating factor in the agency’s
decision, he did not show a “convincing mosaic” of reprisal, and he did not
provide comparator evidence or other circumstantial evidence of pretext.
ID at 11-18 (discussing Savage v. Depart ment of the Army , 122 M.S.P.R. 612,
¶¶ 36-37, 41 -42, 48 -49, 51 (2015), overruled on other grounds by Pridgen v.
Office of Management & Budget , 2022 MSPB 31 , ¶ 25 ).
¶27 On review, the appellant acknowledges that the administrative judge
“correctly articulated the ‘motivating factor’ standard applicable to retaliation
claims before the Board,” but he asserts that the administrative judge disregarded
evidence and erred in his analysis of this standard. PFR File, Tab 15 at 24 -26.
We modif y the initial decision to clarify the proper analytical framework and to
supplement the administrative judge’s analysis of this claim.
¶28 Since the initial decision was issued, the Board has clarified that Savage
does not require administrative judges to separate direct from circumstantial
evidence or to require appellants to demonstrate a convincing mosaic to support a
retaliation claim. Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647,
¶¶ 29-30 (2016), clarified by Pridgen , 2022 MSPB 31 , ¶¶ 23-24. Rather, in
Gardner , the Board reiterated that the dispositive inquiry was whether the
appellant proved by preponderant evidence that the prior EEO activity was a
motivating factor in the contested personnel action. Id., ¶ 30.
¶29 Because the deciding official mentioned his EEO complaint in the decision
letter, IAF, Tab 4 at 22, we find that his complaint was a motivating factor in the
agency’s decision to impose the indefinite suspension, Gardner , 123 M.S.P.R.
647, ¶ 30; Savage , 122 M.S.P.R. 612 , ¶ 51.
18
¶30 Now we turn to the next part of our analysis. Title VII of the Civil Rights
Act of 1964, as amended, requires that such actions “shall be made free from any
discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e -16(a). As noted above, t he appellant may prove an affirmative defense
under this subsection by showing that prohibited discriminatio n or reprisal was a
motivating factor in the contested personnel action, meaning that discrimination
or reprisal played “any part” in the agency’s action. Pridgen , 2022 MSPB 31 ,
¶ 21. In Pridgen , the Board clarified that an appellant who proves motivating
factor and nothing more may be entitled to injunctive or other “forward -looking
relief,” but to obtain the full measure of re lief under the statute, including status
quo ante relief, compensatory damages, or other forms of relief related to the end
result employment decision, he must show that discrimination or reprisal was a
“but-for” cause of the action. Id., ¶¶ 20-22 (citing Babb v. Wilkie , 140 S. Ct.
1168 , 1171, 1177 -78 (2020)).
¶31 The U.S. Supreme Court has explained that “a but -for test directs us to
change one thing at a time and see if the out come changes. If it does, we have
found a but -for cause.” Bostock v. Clayton County, Georgia , 140 S. Ct. 1731 ,
1739 (2020). Here, if we eliminate the agency’s considerati on of the appellant’s
EEO complaint, it is apparent that the agency would have indefinitely suspended
the appellant because of, among other things, his statement that he wanted to kill
someone and the concerns and fear expressed by his supervisors and cowo rkers
regarding his erratic and increasingly hostile behavior towards them. Because we
find that the outcome would be the same without considering his prior EEO
complaint, we further conclude that the appellant has failed to prove that his EEO
complaint w as a but -for cause of the indefinite suspension.18
18 The administrative judge noted in the initial decision that the Standard Form 50
effecting the indefinite suspension indicated that the reason for th e suspension was
“pending results of investigation,” and he discussed the agency’s subsequent
investigation of potential misconduct by the appellant, which ultimately led to his
removal. ID at 13 -18; IAF, Tab 5 at 19. We do not consider any subsequent
19
¶32 The appellant asserted below that his September 19, 2014 email, discussed
above, was also “protected under EEO . . . laws,” IAF, Tab 54 at 6, and he
appears to reassert this claim on review, PFR File, Tab 15 at 25. We further
modify the initial decision to consider this email as protected EEO activity.
¶33 On review, the appellant asserts that the administrative judge failed to
mention that the deciding official testified in her deposition that the email wa s the
“tipping point” in her decision to suspend him. PFR File, Tab 15 at 9 -10, 25;
IAF, Tab 69 at 3 74-75. This argument is not persuasive because it is based on a
misunderstanding of the deciding official’s testimony. The deciding official
testified th at “some employees got concerned” after reading the appellant’s email ,
and she affirmed that the “fact of their concern” was a basis for her decision.
IAF, Tab 69 at 373 -74 (deposition testimony of the deciding official).
She explained that the email “sort of highlighted or sort of set in motion or
brought to the forefront the fact that people were concerned.” Id. at 374
(deposition testimony of the deciding official). The deciding official further
explained that the email “tipped the scale and made peo ple more concerned”
because “people [who] were concerned or [who] may have not been quite as
concerned about some of the thing s he said until the email, which made them
think back on some of the things he had said.” Id. at 374 -75 (deposition
testimony of the deciding official). The deciding official emphasized that some
of the appellant’s female coworkers were so concerned after reading the email
that they requested to go home. Id. at 375-77 (deposition testimony of the
deciding official). Thus, the deciding official’s testimony, in context, reveals that
the email itself was not the tipping point; rather, it was the concern and/or fear
investigation because the deciding official testified in her deposition that she did not
learn of this investigation until approximately June 2015, nearly 6 months after the
indefinite suspension was imposed, IAF, Tab 69 at 527 -29 (deposition testimony of th e
deciding official), and therefore, the investigation does not appear to have been a factor
in the agency’s decision to impose the suspension.
20
expressed by other agency employees after reading the appellant’s email that was
the tipping p oint in her decision to suspend the appellant.
¶34 We find, however, that the reference in the decision letter to the
September 19, 2014 email and the negative effect that it caused in the workplace
satisfies the appellant’s burden to show that the email was a motivating factor in
the agency’s decision to indefinitely suspend him. See, e.g. , Southerland
v. Department of Defense , 119 M.S.P.R. 566, ¶ 22 (2013) (finding that the
deciding official’s statements regarding the effect of the appellant’s inability to
fulfill his duties on the efficiency of the organization constituted evidence of a
discriminatory motive) , overruled on other grounds by Pridgen , 2022 MSPB 31 ,
¶ 47. However, for the reasons described above, we find that the appell ant failed
to prove that his EEO activity was a but -for cause of the indefinite suspension .19
We supplement the initial decision to address the agency’s assertion regarding the
appellant’s U.S. district court complaint, but a different outcome is not
warra nted.
¶35 On review, the agency asserts that it is being forced to litigate identical
claims in two separate legal fora based on the appellant’s decision to file a
complaint in U.S. district court in August 2015 , seven months after he filed this
appeal. PFR F ile, Tab 3 at 21 -25 (discussing Williams v. Equal Employment
Opportunity Commission , 75 M.S.P.R. 144 (1997)). This argument i s unavailing.
In Williams , the Board “[a]ssum[ed]” that under some circumstances it would be
appropriate to dismiss an appeal because of a later -filed Title VII action in
district court. Williams , 75 M.S.P.R. at 149 . Without identifying the
circumstances when it would be appropriate , the Board in Williams concluded
19 If the appellant wishes to pursue any “injunctive or other forward -looking relief” he
believes the Board may be authorized to order because we have found that he proved by
preponderant evidence that his EEO activity was a motivating factor in the agency’s
decision, Babb , 140 S. Ct. at 1178, he should file a request with the Western Regional
Office.
21
that such circumstances were not present in that matter. Id. The Board’s decision
in Williams , therefore, provides little guidance.
¶36 We have reviewed th e appellant’s pro se district court complaint and his
two amended complaints, which involve claims of employment discrimination,
due process violations, and defamation. IAF, Tab 48; PFR File, Tab 14
at 14-153. Based on our review of these submissions, it appears that the appellant
is asserting that the indefinite suspension is one of several agency actions that
supports his hostile work environment claim, but it does not appear that he is
specifically pursuing a claim involving his indefinite suspension i n the district
court matter. In fact, he specifically informed the court in his original complaint
that “[t]he MSPB is adjudicating [his] unlawful[]suspension claims.” IAF,
Tab 48 at 15. Moreover, in a footnote in the first and second amended
complaints , the appellant advised the district court of the initial decision in this
matter and stated that the “illegal suspension and related claims are not within
[the] court’s jurisdiction.” PFR File, Tab 14 at 69, 139. Additionally, the
U.S. District Court fo r the Central District of California issued a decision
granting the agency ’s motion for summary judgment on claims involving the
Equal Pay Act and claims that the appellant’s various nonselections were based
on disc rimination and/or retaliation. McCardle v. Yang , No. CV 15 –6236 DSP
(Ex), 2017 WL 2312998, at *1-*7 (C.D. Cal. May 25, 2017), aff’d sub nom.
McCardle v. Lipnic , 738 F. App ’x 464 (9th Cir. 2018). The court of appeals, in
its decision, affirmed the district court ’s decision to dismiss for failure to state a
claim the appellant’ s due process, hostile work environment, retal iation, and
defamation claims. McCardle , 738 F. App ’x at 464. There is no indication in
either of these decisions that the indefinite s uspension was before the court. In
the absence of any persuasive evidence that the appellant was attempting to
relitigate his indefinite suspension appeal before the court, it is not appropriate to
dismiss this matter.
22
We do not consider the appellant’s claim of disability discrimination because he
did not raise it below or show that it is based on new and material evidence that
was not previously available despite his due diligence.
¶37 In his Order and Summary of Conference Call, the administrative judge
noted that the appella nt raised defenses of reprisal, a due process violation, and a
violation of the Fourth Amendment. IAF, Tab 66 at 2. The administrative judge
also stated that the appellant “confirmed that he is not pursuing any other
affirmative defense claims and/or con firmed that he is withdrawing any
affirmative defense and/or other claims not specifically identified above.” Id.
at 4. The administrative judge therefore concluded that, “[w]ith regard to other
affirmative defenses not raised in this appeal, the affirma tive defenses not
specifically memorialized above will not be further addressed by the Board
absent a specific timely motion requesting otherwise followed by an order.” Id.
(emphasis in original). The appellant, who was represented by counsel, did not
challenge the administrative judge’s rulings at any time below, including in his
closing brief, nor did he otherwise indicate that he was raising a claim of
disability discrimination. Because the appellant has not shown that this argument
is based on new an d material evidence that was not available before the record
closed below, Banks , 4 M.S.P.R. at 271, we do not consider this claim on review,
Ronso v. Department of the Navy , 122 M.S.P.R. 391, ¶ 3 n.1 (2015); Burge v.
Department of the Air Force , 82 M.S.P.R. 75, ¶ 31 (19 99).
¶38 We have considered the appellant’s assertion that the Board should consider
his disability discrimination claim on its own motion. PFR File, Tab 15 at 16
(citing Mitchell v. Department of the N avy, 6 M.S.P.R. 364 (1981) ). In Mitchell ,
6 M.S.P.R. at 365, the Board stated that it was “ more amenable to considering
allegations of discrimination prohibited by statute raised for the first time in a
petition for review than other allegations of error .” Here, however, we are not
persuaded that Mitchell warrants a different outcome. There is no mention that
the appellant in Mitchell was represented by counsel before the administrative
23
judge. By co ntrast, the appellant was represented by counsel below, and he is
responsible for the errors of his chosen representative . Sofio v. Internal Revenue
Service , 7 M.S.P.R. 667 , 670 (1981).
¶39 We have considered the parties’ remaining arguments, but we find that they
are unavailing.
ORDER
¶40 We ORDER the agency to rescind the indefinite suspension and to restore
the appellant effective December 28, 2014. 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 da te of this decision.
¶41 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
decisi on. 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 i s 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.
¶42 We further ORDER the agency to tell the appellan t 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).
¶43 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
24
fully carried out the Board ’s Order, and s hould include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
¶44 For agencies whose payroll is administered by either the National Finance
Center of th e 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 tim ely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 ‑day period set forth above.
NOTICE TO THE APPEL LANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet the se 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. The initial d ecision, as supplemented by this
Final Order, constitutes the Board’s final decision in this matter.
5 C.F.R. § 1201.113 .
25
NOTICE OF APPEAL RIG HTS20
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. 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).
20 Since the issuance of the initial decision in this matter, 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.
26
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washin gton, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probo no for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your repres entative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
27
discrimination based on race, color, religion, sex , 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
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
28
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in se ction 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.21 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Fede ral Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are intere sted in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appel lants before the Federal Circuit. The
21 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.
29
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 p aid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the ba ck 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 docume ntation is not applicable:
☐ 2) Settlement agreement, administrative dete rmination, arbitrator award, or order.
☐ 3) Signed and completed “Empl oyee 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 t he 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 separa te leave account pursuant to 5 CFR § 550.805(g).
31
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit
Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information describing
what to do in accordance with decision.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected
(if applicable).
Attachments to AD -343
1. Provide pay entitlement to include Overtime, Night Diffe rential, 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 agen cy.
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, certi fication 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 com putation 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. | MCCARDLE_TREVOR_SF_0752_15_0230_I_1_FINAL_ORDER_1990917.pdf | 2023-01-06 | null | SF-0752 | NP |
3,832 | https://www.mspb.gov/decisions/nonprecedential/GUZMAN_JORGE_M_SF_0752_15_0170_A_2_FINAL_ORDER_1990930.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JORGE M. GUZMAN,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
SF-0752 -15-0170 -A-2
DATE: January 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
James P. Walsh , Esquire, Long Beach, California, for the appellant.
Carolyn D. Jones , Esquire, Williston, Vermont, for the agency.
John B. Barkley , Esquire, Phoenix, Arizona, 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 addendum initial decision, which awarded $198,162 in
attorney fees and $6,584.02 in costs . Generally, we grant petitions such as these
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the ad ministrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evide nce or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that neither party
has established any basis under section 1201.115 for granting the petition or cross
petition for review. Therefore, we DENY the petition for review a nd the cross
petition for review. We MODIFY the addendum initial decision to deduct 5 hour s
from the fee award due to a mathematical error , and we reduce the amount of
costs awarded to $3,597.90 . Except as expressly MODIFIED herein, we AFFIRM
the addendu m initial decision.
BACKGROUND
¶2 The following facts, as recited in the addendum initial decision, are
generally undisputed. Guzman v . Department of Homeland Security , MSPB
Docket No. SF -0752 -15-0170 -A-2, Attorney Fee s File (A -2 AFF), Tab 15,
Addendum I nitial Decision (AID). Following investigations in 2004 to 2005 and
2010 to 2014 (related to the appellant’s educational qualifications and to the
discovery of a microphone in his old office), the agency remove d the appellant
from his Assistant Special Agent in Charge position for lack of candor (involving
the microphone discovery ). AID at 2. The appellant retired in lieu of removal.
Id. After the appellant filed a Board appeal and the administrative judge he ld a
6-day hearing, the administrative judge reversed the appellant’s removal and
granted corrective action based on a determination that the agency retaliated
3
against him for whistleblowing disclosures. AID at 1 -2; Guzman v. Department
of Homeland Securi ty, MSPB Docket No. SF -0752 -15-0170 -I-2, Initial Decision
(Sep t. 29, 2017). The merits initial decision became the Board’s final decision
when neither party filed a petition for review. AID at 2.
¶3 The appellant filed a motion for attorney fees, which wa s dismissed without
prejudice and automatically refiled. AID at 1, 3 -4; A-2 AFF, Tab 1; Guzman v .
Department of Homeland Security , MSPB Docket No. SF -0752 -15-0170 -A-1,
Attorney Fee s File (AFF), Tabs 1, 20. The administrative judge issued an
addendum init ial decision, which granted in part the appellant’s motion for
attorney fees and costs. AID at 1 -2. The administrative judge made the
following findings: (1) the appellant wa s a prevailing party in the merits initial
decision and generally entitled to r easonable attorney fees and costs pursuant to
5 U.S.C. § 1221 (g);2 (2) the appellant proved his entitlement to 13.3 hours for
Michael Zweiback, 33.1 hours for Margarita Gevondyan , and 426 hours for James
P. Walsh ; (3) $540/hour is an appropriate rate for Mr. Zweiback, $300 /hour for
Ms. Gevondyan, and $425 /hour for Mr. Walsh; (4) the appellant is entitled to a
fee award in the amount of $7,182 for Mr. Zweiback, $9,930 for Ms. Gevondyan ,
and $181,050 for Mr. Walsh; and (5) he is entitled to $6,584.02 in costs. AID
at 3-20.
¶4 The agency has filed a petition for review, the appellant has filed a
response, and the agency has filed a reply. Guzman v . Department of Homeland
Security , MSPB Doc ket No. SF -0752 -15-0170 -A-2, Petit ion for Review (PFR)
2 The administrative judge concluded that, because no final decision had yet been issued
regarding the appellant’s petition for enforcement and addendum proceedings for
compensatory and consequential damages, his request for fees for those actions was
premature. AID at 2-3 & n.2. The appellant does not object to this ruling . Petition for
Review File, Tab 3 at 25 . The administrative judge properly found such requests
premature, and we do not further conside r them here. See, e.g. , Miller v. Department of
the Army , 106 M.S.P.R. 547 , ¶ 8 (2007 ); see also 5 C.F.R. § 1201.203 (d) (“A motion
for attorney fees must be filed as soon as possible after a final decision of the Board but
no later than 60 days after the date on which a decision becomes final.”).
4
File, Tabs 1, 3, 5. The appellant has filed a cross petition for review, and the
agency has filed a response. PFR File, Tabs 3, 6.
DISCUSSION OF ARGUME NTS ON REVIEW
Legal Standar d
¶5 The administrative judge evaluated the fee award pursuant to 5 U.S.C.
§ 1221 (g). AID at 5. This paragraph states that corrective action “shall” include
“reasonable” attorney fees and “any other reasonable costs incurred” “[i] f an
employee . . . is the prevailing party before the Merit Systems Protection Board,
and the decision is based on a finding of a prohibited personnel practice .”
5 U.S.C. § 1221 (g)(1) -(2). Section 1221(i) of Title 5 of the U.S. Code makes
section 1221(g)(2) applicable to the appellant’s removal appeal under 5 U.S.C.
§ 7513 (d), and we discern no error with the administrative judge’s use of this
standard in this matter .3 See 5 U.S.C. § 1221 (i).
¶6 The computation of a reasonable attorney fee s award begins with an
analys is of two objective variables: t he lawyer ’s customary billing rate and the
number of hours reasonably devoted to the case. Ruble v. Office of Personnel
Management , 96 M.S.P.R. 44, ¶ 7 (2004). The burden of establishing the
reasonableness of hours claimed in an attorney fee s application is on the moving
party. Id.
¶7 The administrative judge noted that, in Rumsey v. Department of Justice ,
866 F.3d 1375 , 1379 (Fed. Cir. 2017), the United States Court of Appeals for the
Federal Circuit held that “the mandatory language of [5 U.S.C. § 1221 (g)] makes
clear that a petitioner who is a prevailing party is entitled to attorney’s fees and
costs, even if the supporting documentation is in some way deficient.” AID at 5.
3 The administrative judge found that, because an award of attorney fees was mandatory
based on the corrective action award, she did not need to address whether an award of
fees would be in the interest of justice under 5 U.S.C. § 7701 (g). AID at 6 n.4. Neither
party specifically argues that the administrative judge used the incorrect legal standard
for evaluating the fee petition.
5
Further, she noted that the court advised that when the documentation is deficient,
the Board has “an obligation” to critically review the records and identify hours
that are “excessive, redundant, or otherwise unnecessary .” AID at 5 -6 (discussing
Rum sey, 866 F.3d at 1381).
We affirm the administrative judge ’s analysis and conclusions regarding hourly
rates .
¶8 Neither party challenges on review the administrative judge’s decision to
award a $540 /hour rate to M r. Zweiback or a $300 /hour rate to Ms. Gevondyan.
AID at 13-14. We find that the administrative judge’s analysis is reasonable, and
we affirm her decision in this regard. We now turn to Mr. Walsh’s $425/ hour rate
awarded by the administrative judge .
¶9 In the addendum initial decision , the adminis trative judge considered the
appellant’s contention that Mr. Walsh was entitled to a $500 /hour rate and the
agency’s argument that he was only entitled to a $325 /hour rate . AID at 17 -18.
In addressing the appellant’s argument, t he administrative judge noted that the
Federal Circuit has declined to endorse the “ Laffey matrix”4 to evaluate a
reasonable rate, but it held that it may consider the matrix as part of the
determination of a reasonable rate. AID at 18 (citing Biery v. United States ,
818 F.3d 704 , 713 -14 (Fed. Cir. 2016 )). The administrative judge noted, among
other things, that the Central District of California5 uses different report s than the
Laffey matrix, and she discussed hourly rates for partners and associates in
California. Id. The administrative judge acknowledged that Mr. Walsh had
“extensive , complex trial experience, which was beneficially exhibited” in the
4 The Laffey Matrix is a schedule of hourly rates allowed by the U.S. District Court for
the District of Columbia in Laffey v. Northwest Airlines, Inc ., 572 F. Supp. 354 (D.D.C.
1983), reversed in relevant part , 746 F.2d 4 (D.C. Cir. 1984), overruled by Save Our
Cumberland Mountains, Inc. v. Hodel , 857 F.2d 1516 (D.C. Cir. 1988) . Caros v.
Department of Homeland Security , 122 M.S.P.R. 231 , ¶ 9 n.5 (2015). It purports to
show the prevailing market rates for attorneys in the District of Columbia. Id.
5 The relevant geographic market for determining a reasonable hourly rate is the forum
of the litigation. Casali v. Department of the Treasury , 81 M.S.P.R. 347 , ¶ 9 (1999).
6
merits appeal, this appeal was his first matter before the Board , and he did not
identify any prior experience handling Federal employment law matters. AID
at 17-18.
¶10 The agency argues on review that an hourly rate of $425 is excessive
because, although Mr . Walsh had extensive criminal and civil experience, he had
no prior Board or employment law experience. PFR File, Tab 1 at 19 -21. The
agency cites to two initial decisions to support its requested hourly rate, which
are not precedential. Id.; see Rockw ell v. Department of Commerce , 39 M.S.P.R.
217, 222 (1988) ; 5 C.F.R. § 1201.113 . Conversely, the appellant contends that
the administrative judge should have awarded him an hourly rate of $500, relying
on, among other things, his hourly rate before he retired in 2005 ($450 -500/hour),
a declaration from another attorney wh o has extensive experience in Federal
employment law ($560/hour), and the rate under the Laffey matrix for someone
with 31 years of experience ($602 -613/hour). PFR File, Tab 3 at 20 -22.
¶11 We have considered these arguments. The administrative judge’s ana lysis
was reasonable and thoughtful , and the parties have not persuaded us that her
analysis or conclusion was in error. Therefore, we affirm her decision to award
Mr. Walsh a rate of $425 /hour .6
6 For the first time on review, the agency asks that any hours charged by Mr. Walsh for
clerical duties should be charged at a rate of no more than $100/hour. PFR File, Tab 1
at 20 -21. The Board generally will not consider an argument raised for the first time in
a petition for review absent a showing that it is based on new and material evidence not
previously available despite the party ’s due diligence. Clay v. Department of the Army ,
123 M.S.P.R. 245 , ¶ 6 (2016); 5 C.F.R. § 1201.115 (d). The ag ency has not made such a
showing, and we do not address this argument on review.
7
With the exception of correcting a mathematical error, we a ffirm the
administrative judge’s evaluation of the hours of work performed by
Mr. Zweiback, Ms. Gevondyan, and Mr. Walsh .7
¶12 The addendum initial decision contains the administrative judge ’s lengthy
and detailed analysis of the hours claimed for work performed by Mr. Zweiback,
Ms. Gevondyan, and Mr. Walsh on the appellant’s behalf. AID at 7 -17. There
was a considerable amount of attorney work performed before the notice of
proposed removal (involving the microphone discovery) ; thus, the administrative
judge explained that fees could be awarded for time spent on a separate and
optional, but factually related , proceeding if (1) the claimed portion of work done
in that proceeding was reasonable under Kling v. Department of Justice ,
2 M.S.P.R. 464 (1980),8 and (2) the work, or some discrete portion of it, done in
the other proceeding, significantly contributed to the success of the su bsequent
Board proceeding and eliminated the need for work that otherwise would have
been required in connection with that subsequent proceeding. AID at 6 -7
(discussing Richards v. Department of Justice , 67 M.S.P.R. 46, 50 (1995)).
¶13 The administrative judge concluded that some of the time Mr. Zweiback
billed at Nixon Peabody , LL P, related to work involving the agency investigation
7 In Wilson v. Department of Health & Human Services , 834 F.2d 1011 , 1012 (Fed. Cir.
1987), the Federal Circuit held that , if an administrative judge has concerns about
deficiencies in a motion for attorney fees, she should afford the appellant an
opportunity to address the matter before rejecting the claims. Here, t he administrative
judge disallow ed certain claimed hours without first communicating her doubts to the
appellant and providing him an opportunity to answer. However, an adjudicatory error
that is not prejudicial to the appellant’s substantive rights provi des no basis for reversal
of the addendum initial decision . Panter v. Department of the Air Force , 22 M.S.P.R.
281, 282 (1984). The agen cy noted objections to the fee petition and supplemental
filings, e.g., AFF, Tab 15; A -2 AFF, Tab 10, and the appellant discusses these claims on
review, PFR File, Tab 3. Accordingly, we are able to decide the reasonableness of the
disputed fees without remanding the matt er to the administrative judge. See Driscoll v.
U.S. Postal Service , 116 M.S.P.R. 662 , ¶ 12 (2011 ); Diehl v. U.S. P ostal Service ,
88 M.S.P.R. 104 , ¶ 9 (2001) .
8 Kling discussed the lawyer’s customary hourly billing rate and the number of hours
devoted to the case. Kling , 2 M.S.P.R. at 472.
8
into the appellant’s educational qualifications and the appellant’s response to that
investigation was recoverable because it was “directly relevant to persuading the
agency to resolve the [earlier ] proposed removal related to alleged lack of candor
about the a ppellant’s education background .” AID at 7 -8. However, Mr.
Zweiback’s Seyfarth Shaw , LLP , billing records from 2010 largely related to
criminal matters and interactions with the U.S. Attorney’s Office and were not
recoverable. AID at 8. Similarly, she found that Mr. Zweiback’s Arent Fox
billing records related to litigation at the Equal Employment Opportunity
Commission and the Office of Special Counsel (OSC) were not recoverable , in
part because the appellant did not timely appeal from OSC’s close -out letter .9 Id.
The administrative judge also discussed in detail numerous other Nixon Peabody
billing records for Mr. Zweiback and Ms. Gevondyan and approved, rejected, or
reduced the claimed hours.10 AID at 9 -13.
¶14 Regarding Mr. Walsh, the administrative judge rejected as too disconnected
from the issues in this appeal 40 hours of preliminary research in July 2012,
50 hours drafting an OSC complaint and corresponding with OSC, 35 hours
working to obtain information through a Freedom of Information Act (FOI A)
request, 40 hours corresponding with high -ranking agency officials, and
additional time spent researching and drafting a complaint under the Federal Tort
Claims Act (FTCA) .11 AID at 14-15. However, she awarded 100 hours for
9 The appellant concedes that Mr. Zweiback’s work at Arent Fox in the equal
employment opportunity matter “is not sufficiently related to the action under
consideration by the Board to warrant an award of atto rney fees.” PFR File, Tab 3 at 9.
We affirm the administrative judge’s decision not to award fees for this work.
10 The administrative judge explained that, due to Mr. Zweiback’s use of block billing,
it was impossible to determine how much of certain e ntries was recoverable (because it
related to the educational qualifications issue) and how much was not recoverable
(because it was related to the criminal matter). AID at 9 & n.6.
11 The appellant does not appear to challenge the administrative judge’s decision to
disallow 50 hours for time spent “dealing with the OSC” or 20 hours claimed in
connection with the filing of a complaint under the FTCA . PFR File, Tab 3 at 15, 17.
We affirm her decisions in this regard.
9
reviewing the report of investigation related to the lack of candor charge
(involving the appellant’s educational qualifications ) and respond ing to that
earlier notice of proposed removal , 150 hours for preparing the response to the
notice of proposed remo val regarding the lack of candor charge (involving the
microphone discovery ), 10 hours spent in the mediation process,12 and 19 hours
for preparing the fee petition. AID at 15 -17. The administrative judge
acknowledged that Mr. Walsh estimated spending 38 hours drafting pleadings and
53 hours reviewing pleadings and discovery r esponses for a total of 91 hours
prior to mediation ; however, because she already approved a significant amount
of time for Mr. Walsh to review the agency file materials during the pr edecisional
period and much of the discovery related to the equal employment opportunity
process, the administrative judge only approved 60 hours for this work. AI D
at 16. Similarly, after mediation , Mr. Walsh estimated spending at least 92 hours
draftin g motions, conducting the hearing, and preparing the written closing
argument, but because the motions for a protective order were denied, the
administrative judge only approved 87 hours for this work . AID at 17. In total,
the administrative judge awarde d 13.3 hours for Mr. Zweiback, 33.1 hours for
Ms. Gevondyan, and 426 hours for Mr. Walsh. AID at 12-13, 17.
¶15 Both parties challenge the administrative judge’s assessment of claimed
hours . PFR File, Tab 1 at 10 -19, Tab 3 at 9 -18. It is well settled tha t the
administrative judge who adjudicated the case on the merits is in the best position
to determine whether the number of hours expended is reasonable and absent a
specific showing that the administrative judge’s evaluation was incorrect, the
Board will no t second -guess it. Wightman v. Department of Veterans Affairs ,
111 M.S.P.R. 109 , ¶ 11 (2009) ; Ruble , 96 M.S.P.R. 44 , ¶ 13; Holliman v. U.S.
Postal Service , 81 M.S.P.R. 637 , ¶ 4 (1999); Beall v. Department of the Interior ,
68 M.S.P.R. 231 , 234 (1995) . The arguments i n the petition for review and cross
12 Neither party challenges the administrative judge’s award of hours related to
mediation, and we affirm this decision.
10
petition for review largely constitute mere disagreement with the administrative
judge ’s detailed determinations. Nevertheless , we will address some of the
parties’ arguments herein.
¶16 For example, t he agency argues that the administrative judge erred in
awarding attorney fees to Mr. Zweiback, Ms. Gevondyan, and Mr. Walsh for
work performed in unrelated matters, particularly the appellant’s educational
qualifications matter . PFR File, Tab 1 at 10 -13. The agency asserts that the
educational qualifications case has never been before the Board and the appellant
did not show that work done by his attorneys in that matter significantly
contributed to his success in his merits appeal. Id. at 10. The agen cy also argues
that the administrative judge’s reliance on Richards was misplaced because
Richards involved an award of fees for work prior to the issuance of the proposal
at issue, and not for work on a different proposal that never made its way to the
Board and was unrelated to the Board appeal. Id. at 11. Alternatively, the agency
contends that any fees awarded should be “substantially reduced because the work
performed [was] not detailed and its context not provided.” Id. at 12.
¶17 We discern no error w ith the administrative judge’s analysis or reliance on
Richards . Although Richards may have involved fees for work performed related
to the removal at issue, the holding in Richards does not preclude the
administrative judge from taking a holistic view of the appellant’s whistleblower
retaliation claim in her decision to award fees . Indeed, the administrative judge
concluded in the merits initial decision that the educational qualifications case
was tied to the appellant’s allegations of reprisal for whis tleblowing disclosures.
See Guzman v. Department of Homeland Security , MSPB Docket No. SF -0752 -
15-0170 -I-2, Initial Decision at 34 (Sep t. 29, 2017) (finding that the appellant
proved by preponderant evidence that “his 2010 disclosure prompted the agency
to initiate the [educational] credentials investigation . . . which led to the agency
re-opening the investigation into the 2004 microphone discovery, the culmination
of which wa s his removal” ). Because of the administrative judge’s explicit
11
findings linking the whistleblower reprisal claim to the educational qualifications
case, we discern no error in the administrative judge’s decision to award fees in
this regard.
¶18 The agency argues that the administrative judge erred in awarding
Mr. Walsh 150 hours for the March 7, 2014 notice of proposed removal
(involving the microphone discovery) because he “lacks any records of the time
worked” and he only “offers generalities for much of the work performed.” PFR
File, Tab 1 at 13-15. The agency does not dispute that some fees should be
awarded; it argues instead , as it did before the administrative judge, that only
49 hours should be awarded for this work . Id. at 13; A -2 AFF, Tab 10 at 15-17.
¶19 Mr. Walsh admitted before the administrative judge that it was his intention
to work pro bono for the appellant ; thus, he did not maintain time -keeping records
until a July 18, 2018 status conference in which he was directed to file an
accounting of his work . A-2 AFF, Tab 3 at 5. Therefore, he had to reconstruct
time -keeping records from his 6 years of representation through notes,
correspondence, emails, and pleadings. Id. As the agency noted, however, the
absence of contemporaneous records is normally an insufficient basis, by itself, to
completely deny an attorney fee request, but it may prompt the Board to carefully
scrutinize the reconstructed records and reduce the hours claimed if there is
uncerta inty as to their accuracy. A -2 AFF, Tab 10 at 11 (citing Wilson v .
Department of Health & Human Services , 22 M.S.P.R. 435, 437 (1984)). The
addendum initial decision reflects the administrative judge’s proper consideration
of Mr. Walsh’s reconstructed records and explanation of claimed hours both
regarding the notice of proposed removal (involving the microphone discovery )
and other filings .
¶20 The record supports the administrative judge’s decision to approve
150 hours for Mr. Walsh’s work on the notice of proposed removal (involving the
microphone discovery) . Importantly, Mr. Walsh provided a narrative explanation
made under penalty of perjur y for the work that he performed during this time
12
frame . A-2 AFF, Tab 5 at 3, 32 -34. Notably, the March 7, 2014 notice of
proposed removal included a lengthy, 450 -page Report of Investigation, the
appellant submitted written replies on June 26 and July 2 2, 2014, and the
appellant made an oral reply on July 31, 2014; after the agency notified the
appellant that the deciding official would rely on additional materials, the
appellant submitted additional written replies on September 23 and 29, 2014, and
he provided an October 21, 2014 oral reply. Guzman v. Department of Homeland
Security , MSPB Docket No. SF -0752 -15-0170 -I-1, Initial Appeal File, Tab 6 at
32-101, 103 -12, 114-15, 120-22, 124 -239, Tab 7 at 4 -29, 51 -55, 5 7-203, Tab 8 at
4-99, Tab 9 at 4 -222, Tab 10 at 268 -72, 275 -77, Tab 11 at 4 -321, Tab 12 at 4 -150.
Given the volume of documentation relating to the lack of candor charge
(involving the microphone discovery) , as well as the amount of substantive
correspondence between the parties before a decisio n was made on the proposed
removal, we do not find such hours excessive, and we discern no error with the
administrative judge’s award of 150 hours of work.
¶21 The agency also argues that the 91 hours sought by Mr. Walsh related to
work performed after the appeal was filed and prior to the referral to mediation is
excessive. PFR File, Tab 1 at 15 -18. These arguments were largely raised before
the administrative judge. Compare id. at 15 -17, with A-2 AFF, Tab 10 at 17 -19.
However , the agency correctly notes on review that there is a mathematical error.
Although Mr. Walsh claimed 53 hours for reviewing pleadings and discovery
responses, the total amount was actually 48 hours. PFR File, Tab 1 at 15-16 &
n.2; see A-2 AFF, Tab 5 at 3 7 (explaining that he spent 8 hours, 15 hours, and
25 hours, respectively, reviewing agency documents). Therefore, instead of
91 claimed hours for Mr. Walsh’s work in the appeal prior to mediation, the
correct amount is 86 hours of work . Because we discern no error with the
administrative judge’s decision to reduce the claimed hours by 31 hours, it is
appropriate to subtract that amount from the new starting point of 86 hours for
this work . Accordingly, we modify the a ddendum initial decision to award
13
Mr. Walsh 55 hour s for his work reviewing agency pleadings and discovery
responses in MSPB Docket No. SF -0752 -15-0170 -I-1.
¶22 Regarding the refiled appeal, the agency asserts that Mr. Walsh failed to
adequately support his claim of 92 hours to include drafting motions for a
protective order (5 hours) and a prehearing submission (7 hours) , conducting the
hearing (60 hours), and preparing the written closing argument (20 hours). PFR
File, Tab 1 at 17 -18. Instead, the agency requests that the appellant recover only
80 hours for this work. Id. at 18; A -2 AFF, Tab 10 at 20. The agency ’s argument
is not persuasive, and we affirm the administrative judge’s decision to award
87 hours for Mr. Walsh’s work in the refiled appeal .
¶23 The agency contends that the administrative judge erred by granting the full
amount of 19 hours requested for Mr. Walsh’s work on the fee petition as both
premature and lacking support. PFR File, Tab 1 at 1 8-19. In the addendum
initial decision , the administrative judge addressed this argument, noting that the
Board has approved fees for time spent preparing a fee petition without requiring
a separate addendum petition to evaluate fees. AID at 17 (citing Guy v.
Department of the Army , 118 M.S.P.R. 45 , ¶ 23 (2012), and Driscoll v. U.S.
Postal Service , 116 M.S.P.R. 662 , ¶ 30 (2011)). She also noted that the agency
did not challenge the r equest for 19 hours. Id. We discern no error wi th the
administrative judge ’s assessment that 19 hours was a reasonable amount of time
for the work on the appellant’s fee petition , particularly given his success at the
merits stage and the fact that multiple attorneys had represented him at various
stages in his litigation against the agency. See, e.g. , Driscoll , 116 M.S.P.R. 662 ,
¶ 30 (awarding 15.45 hours for the fee petition).
¶24 The appellant also challenges some of the administrative judge’s findings in
the addendum initial decision. For example, he argues that he was entitled to all
fees claimed by Mr. Zweiback for his work at Seyfarth Shaw in connection with
the criminal matter because it was “not a bona fide criminal investigation ,” but
instead , agency investigators “[made] use of [F]ederal criminal tools and
14
processes to accomplish their goal” of removing the appellant. PFR File, Tab 3
at 9-11. He argues that, although labeled as “criminal” work, Mr. Zweiback’s
contacts w ith the U.S. Attorney’s Office were an “early part of the effort to
frustrate ” the agency’s retaliation against the appellant for his whistleblowing
disclosures . Id. at 11. The appellant has not persuaded us that the administrative
judge ’s assessment of this work was in error .
¶25 The appellant also contends that the administrative judge erred by
significantly reducing hours claimed by Mr. Zweiback and Ms. Gevondyan at
Nixon Peabody . Id. at 11 -14. Although he criticizes the administrative judge ’s
decision to “disallow[] a very substantial amount of fees,” he concedes that he
would essentially be comparing his “estimate of the fairness of a particular
assignment of allowable hours” with the administrative judge ’s estimate. Id.
at 11-13. We discern no specific error in the administrative judge’s determination
in this regard.
¶26 Finally, the appellant asserts that the administrative judge erred by
disallowing some of Mr. Walsh’s claimed hou rs, such as 40 hours “familiariz[ing]
himself with the background and details of the [a]gency investigation,” 35 hours
to obtain information from the agency through a FOIA request,13 and 40 hours
corresponding with agency managers . Id. at 14 -17. The appellant’s submissions
do not persuade us that it is appropriate to second -guess the administrative
judge ’s decisions in this regard.
¶27 We have considered the parties’ remaining arguments, but none warrant a
different outcome. For these reasons, we affirm the administrative judge’s
decision to award 13.3 hours for Mr. Zweiback ($7,182 ), and 33.1 hours for Ms.
Gevondyan ($9,930 ). W e modify the addendum initial decision to award
421 hours for Mr. Walsh ($178,925) . Thus, the total fees awarded are $19 6,037.
13 He proposes instead that 12 hours should be awarded. PFR File, Tab 3 at 16.
15
We modify the addendum initial decision to reduce the award of costs to
$3,597.90 .
¶28 The administrative judge noted that 5 U.S.C. § 1221 (g) permits recovery of
costs and the Board has interpreted this provision to permit a broader recovery
than may apply in appeals under 5 U.S.C. § 7701 . AID at 19 (citing Smit v.
Department of the Treasury , 61 M.S.P.R. 612 (1994), and Department of Health
& Human Services v. Balaban , 33 M.S.P.R. 309 (1987)). The administrative
judge awarded the appellant costs for 50 round trips of 80 miles each for
Mr. Walsh to drive to his house, based on the Internal R evenue Service mileage
rate ($0.53 5 per mile ), for a total of $2,140. Id. Noting that the agency “did not
file anything” after Mr. Walsh submitted receipts for mailing and related
expenses , the administrative judge also awarded the appellant $4,444.02 for such
expenses . Id. However, she did not awar d costs for Mr. Walsh’s annual s tate bar
dues and continuing legal education requirements because they were “routine
item[s] of attorney overhead .”14 AID at 19 -20. The total award of costs awarded
by the administrative judge was $6,584.02. AID at 20.
¶29 On review, t he agency argues that the administrative judge erred in
awarding costs when the appellant failed to provide an itemized accounting of
services and expenses claimed as costs, untimely filed his ev idence of costs, and
was awarded costs for nonreimbursable items. PFR File, Tab 1 at 21 -26. For the
following reasons, we find that the appellant is entitled to an award of costs, but
the amount of costs awarded by the administrative judge should be reduced.
14 The appellant challenge s the administrative judge’s decision not to award costs for
activating Mr. Walsh’s bar membership and accompanying continuing legal education
because he was “fully retired,” and it was the “shared understanding” between him and
Mr. Walsh that he would be compensated for these expenses. PFR File, Tab 3 at 19.
Howev er, the appellant offers no legal authority to support this proposition that routine
items of attorney overhead, such as bar dues, are recoverable. Accordingly, we affirm
the administrative judge’s conclusion in this regard.
16
Travel Expenses
¶30 As support for his request for reimbursement for travel, Mr. Walsh stated
under penalty of perjury that, “during the course of [6+] years of representing ”
the appellant , from approximately July 2012 to 2018, “[he] made a great man y
trips to [the appellant’s] house in connection with document filing, because [the
appellant] is much more computer -literate than [he was] , and [he] relied upon his
expertise to help [him] format and submit documents to the Board. ” A -2 AFF,
Tab 5 at 43. Mr. Walsh also stated that it was “ much easier to have [the
appellant] answer specific questions about documentary assertions if [they were]
together as [he worked] .” Id. Mr. Walsh stated that the distance between his
home and the appellant’s home was 40 miles and the roundtrip was 80 miles. Id.
He estimated that he made “ not fewer than a total of 50 trips. ” Id. Mr. Walsh
asked for reimbursement of “ that amount of mileage . . . at the prevailing per
diem mileage rate paid for government travel, ” which he calculated to be
“$2140.00 at .53.5 a mile based on the Internal Revenue Service standard mileage
rate for reimbursement. ” Id.
¶31 The agency asserts that , because Mr. Walsh failed to provide the dates of
these trips and the specific reason for each trip, the administrative judge erred in
awarding him costs for these expenses . PFR File, Tab 1 at 22. The
administrative judge acknowledged that the dates offered by Mr. Walsh were not
clear, but she noted that the court in Rumsey held that , although specific date
records were the “preferred practice,” an estimate was also acceptable. AID at 19
(citing Rumsey , 866 F.3d at 1379 ). We discern no error with the administrative
judge ’s analysis in this regard.
¶32 However, e ven if we credit Mr. Walsh’s statements made under penalty of
perjury regarding the distance between his house and the appellant’s house as
well as his estimate that he made “not fewer than a total of 50 trips” during this
time frame , he is not entitled to recover all such claimed expenses. The merits
17
appeal concluded in 2017, the appellant filed a December 2017 p etition for
enforcement, and the damages appeals commenced in January 2018, all of which
were granted (at least in part ) and are currently pending on review. Mr. Walsh’s
statements did not indicate whether the purpose of any of the 50 claimed trips was
to discuss the petition for enforcement or the addendum damages proceedings,
which for the above reasons are not included in a fee award at this time.
¶33 A closer review of the ap pellant’s submissions provides some clarity on this
point . In a supplemental declaration made under penalty of perjury, Mr. Walsh
indicated that he compiled an accounting of “attorney time spent on this appeal”
since July 18, 2018, which included desk cal endar entries. A -2 AFF, Tab 11
at 88. A review of Mr. Walsh’s desk calendar, which covers July 1 6 through
December 16, 2018, reflects that on various dates, including July 31, August 21,
September 6, October 22, October 24, October 28, and December 3, hi s trips to
the appellant ’s house involved meetings to discuss issues relating to the
compliance matter or the addendum damages proceedings. Id. at 91 -109.
Accordingly, because there has been no final decision in these matters, these trips
are not reimbursable at this time , and we subtract these seven trips from the total
number of trips claimed by Mr. Walsh .
¶34 Also, given Mr. Walsh’s concession that he “made a great many trips to [the
appellant’s house ] in connection with document filing” and “reli ed upon [the
appellant’s] expertise to help [him] format and submit documents to the Board,”
A-2 AFF, Tab 5 at 43, Mr. Walsh likely visited the appellant on various dates in
late 2017 and early 2018 to discuss and file certain pleadings in the enforcement
action and addendum damages appeals. For example, Mr. Walsh likely visited
the appellant on or before December 13, 2017 , to discuss and file the petition for
enforcement, on or before January 2, 2018 , to discuss and file the motion for
damages , on or befo re January 18, 2018 , to discuss and file the first supplement
to the motion for damages, on or before January 30, 2018, to discuss and file the
reply to the agency’s response to the petition for enforcement, and on or before
18
April 6, 2018 , to discuss and f ile the second supplement to the motion for
damages . Therefore, we subtract an additional five trips from the total number of
trips claimed by Mr. Walsh .
¶35 Accordingly, if we multiply 38 trips to the appellant’s house by 80 miles
round trip by the claimed rate of $0.53 5 per mile ,15 the total is $1,626.40 in travel
expenses awarded . We modify the addendum initial decision in this regard .
Receipts
¶36 As support for his request for reimbursement for costs, Mr. Walsh stated
under penalty of perjury that he gathered receipts during his representation of the
appellant. A -2 AFF, Tab 11 at 16. He explained that it was his “regular practice
to obtain paper receipts for items purchased to advance his case, including office
supplies [and] costs of copyin g documents” that were sent by the Board or
opposing counsel, “which [he] was unable to download at home.” Id. He stated
that he “placed those receipts into a file folder which was dedicated to those
receipts.” Id. Copies of these receipts “in an undif ferentiated accumulation” are
in the record. Id. at 1 7-86. Mr. Walsh acknowledged that “[p]lacing those
receipts into date order, or attempting to now recall what purpose was served by
each expenditure is, as a practical matter, impossible. ” Id. at 17. He indicated
that the receipts totaled $4,444.02. Id.
¶37 The agency objects to an award of any costs because the appellant failed to
describe each expense in detail and did not show how each claimed expense
related to the current litigation.16 PFR File, Tab 1 at 26. The agency also objects
15 The agency does not argue on review that th e claimed mileage rate of $0.53 5 is
unreasonable. We discern no error with the administrative judge’s reliance on the
appellant’s claimed mileage rate for the allowed trips. Roman v. Department of the
Army , 72 M.S.P.R. 409 , 419 n.2 (1996), aff’d, 129 F.3d 134 (Fed. Cir. 1997).
16 In responding to the administrative judge ’s statement in the addendum initial decision
that the agency “did not file anything” after Mr. Walsh submitted the receipts for
mailing and related expenses, AID at 19, the agency argues on rev iew that it could not
dispute the “late -filed receipts” because the record on attorney fees was closed, PFR
19
to all pre -2014 receipts (because the appellant failed to show how these expenses
related to his successful litigation ) and to all illegible receipts. Id. The agency
asserts that certain expenses are not recoverable, including copying expenses,
printer ink, paper, and all office supplies. Id. Finally, the agency objects to the
administrative judge ’s decision to award costs for a new MacBook laptop and
diagnostics, and for packages sent to the U.S. district court, the agency’s FOIA
Deputy Director , D.S., and an unknown recipient. Id.
¶38 We agree with the agency that some of these costs are not recoverable .
Consistent with the administrative judge’s decision not to award Mr. Walsh costs
for his annual state bar dues and continuing legal education requirements because
such expenses are a “routine item of attorney overhead,” we also consider the
following expenses as overhead and therefore nonreimbursable : ear buds ($8.71 ),
Thomson Reuters – Federal Judicial Procedure and Rules, full set ($139.52 ), 2015
At-A-Glance calendar ($23.99 ), Really Useful 64L storage box ($32.69 ),
MacBook plus extras ($2,114.37 ), and d iagnostics ($79). A-2 AFF, Tab 11 at 33,
36, 45, 54, 73. The total amount of this additional nonreimbursable overhead is
$2,398.28 , which we deduct from the award of costs .
¶39 Additionally, there are other expenses that are not reimbursable because the
appellant has not shown how the particular receipts are related to the merits
appeal , including a March 15, 2013 package to U.S. district court ($3.31 ), an
File, Tab 1 at 22-23. Despite the administrative judge ’s order that the appellant submit
an accounting for fees by October 12, 2018, and the agency should respond by
October 19, 2018, A -2 AFF, Tab 2 at 1 -2, the parties filed several submissions after
these deadlines, e.g., A-2 AFF, Tabs 4 -5, 9-11. In the appellant’s last submission, filed
on December 14, 2018, he included, for the first time, nearly 70 pages of receipts. A -2
AFF, Tab 11. The administrative judge correctly noted that the agency did not file any
pleading after the appellant submitted these receipts, and the agency did not seek leave
to file a response to the appellant’s December 14 submission. However, given the
lateness of the appellant’s submission of receipts and because the agency’s petition for
revie w includes numerous arguments against the admission of and reliance on these
receipts, PFR File, Tab 1 at 22 -26, we will consider these arguments in the first
instance.
20
April 29, 2014 mailing to the agency’s FOIA Deputy Director ($12.66 ),17 and a
May 2, 2015 filing with the U.S. district court ($12.50 ). A-2 AFF, Tab 11 at 35,
44, 57 . There are also two expenses fo r “Fruit Slices” candy ($0.99 each for a
total of $1.98).18 Id. at 52, 58. Additionally, the receipt on page 77 for $0.86
appears to be a duplicate of the receipt on page 75 ; the duplicate receipt is not
recoverable. Finally, Mr. Walsh submitted a credit card statement from June 25
through July 14, 2013. Id. at 68. However, the transactions on June 24, 2013, in
the amount s of $9.18 and $33.75 , were already reflected on the re ceipts on pages
33-34 and are not recoverable. Accordingly, we deduct an additional $74.24 from
the award of costs .
¶40 We are not persuaded by the agency’s remaining arguments. If we subtract
the total amount of additional overhead and nonreimbursable expenses from the
administrative judge ’s award of $4,444.02, the appellant is entitled to an award of
$1,971.50 for the receipts . If we add $ 1,971.50 in receipts to the award of
$1,626.40 for travel expenses, the appellant is entitled to a total of $3, 597.90 in
costs. We modify the addendum initial decision in this regard.
Conclusion
¶41 For the reasons described herein , we affirm the administrative judge’s
decision to award the appellant $7,182 in fees for Mr. Zweiback and $9,930 in
fees for Ms. Gevondyan for a total award of $17,112 . AID at 12 -14. We modify
the addendum initial decision to award the appellant $178,925 in fees for Mr.
Walsh (421 hours at a rate of $425/hour) and $3,597.90 in costs.
17 As noted above, the administrative judge determined that Mr. Walsh’s work relating
to the FOIA request was not recoverable, and we affirm that decision herein. AID
at 15.
18 Mr. Walsh concedes that it is not the agency’s responsibility to pay for candy , and he
agrees to remove this expense. PFR File, Tab 3 at 26.
21
ORDER
¶42 We ORDER the agency to pay the appellant attorney fees in the amount of
$7,182 for Mr. Zweiback’s work, $9,930 for Ms. Gevondyan’s work, and
$178,925 for Mr. Walsh ’s work , for a total of $196,037 in fees, and $3,597.90 in
costs. The agency must complete this action no later than 20 days after the date
of this decision. Title 5 of the United States Code, section 1204(a)(2) ( 5 U.S.C.
§ 1204 (a)(2)).
¶43 We also ORDER the agency to tell the appellant and the attorney promptly
in writing when it believe s it has fully carried out the Board’s Order and of the
actions it has taken to carry out the Board’s Order. We ORDER the appellant and
the attorney to provide all necessary information that the agency requests to help
it carry out the Board’s Order. The appellant and the attorney, if not notified,
should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b).
¶44 No later than 30 days after the agency tells the appellant or the attorney that
it has fully carried out the Board’s Order, the appellant or the attorney may file a
petition for enforcement with the office that issued the initial decision on this
appeal, i f the appellant or the attorney believes that the agency did not fully carry
out the Board’s Order. The petition should contain specific reasons why the
appellant or the attorney believes the agency has not fully carried out the Board’s
Order, and should include the dates and results of any communications with the
agency. See 5 C.F.R. § 1201.182 (a).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The addendum initial decis ion, as supplemented by this Final Order,
constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You
have the right to request review of this final decision by the U.S. Court of
Appeals for the Federal Circuit. You must submit your request to the court at the
following address:
22
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703 (b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed .
See Pinat v. Office of Personnel Management , 931 F.2d 1544 (Fed. Cir. 1991) .
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found
in title 5 of the U.S. Code, section 7703 ( 5 U.S.C. § 7703 ) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb. gov/appeals/uscode.htm . Additional information is
available at the court's website, www.cafc.uscourts.gov . Of pa rticular relevance
is the court’ s “Guide for Pro Se Petitioners and Appellants,” whic h is contained
within the court’ s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit . The Merit Systems Protection Board neither endorses the services
23
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BO ARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | GUZMAN_JORGE_M_SF_0752_15_0170_A_2_FINAL_ORDER_1990930.pdf | 2023-01-06 | null | SF-0752 | NP |
3,833 | https://www.mspb.gov/decisions/nonprecedential/BRADLEY_SHANNON_CH_1221_21_0037_W_1_FINAL_ORDER_1990935.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SHANNON BRADLEY,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-1221 -21-0037 -W-1
DATE: January 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dylan Kosso n, Chicago, Illinois, for the appellant.
Gary Levine and Justine A. Fernandez , Esquire, Hines, Illinois, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the November 30, 2020 initial
decision in this appeal. Initial Appeal File, Tab 10 , Initial Decision ; Petition for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Review (PFR) File, Tab 1 . For the reasons set forth below, we DISMISS the
appeal as settled.
¶2 After the filing of the petition for review, the parties submitted a document
entitled “ SETTLEMENT AGREEMENT ” signed and dated by the appellant on
November 8, 2022 , and by the agency on November 15 , 2022. PFR File, Tab 8
at 10. The doc ument provides, among other things, for the dismissal of the
appeal. Id. at 6-7.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have e ntered into a settlement agreement, whether they understand its
terms, and whether the y 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 Pers onnel 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, inde pendent 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 do not intend for the agreement to be entered into the
record of this appeal for enforcement by the Board. PFR File, Tab 8 at 10.
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 agreement, we need not address the additional considerations
3
regarding enforcement and do not enter the settlement agreement into the record
for enforcement by the Board.2
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.1 13).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 The settlement agreement was reached in another appeal between the parties, Bradley
v. Department of Veterans Affairs , MSPB Docket No. CH -0752 -22-0402 -I-1, Initial
Appeal File ( 0402 IAF), Tab 40 . The agreement is captioned onl y under MSPB D ocket
No. CH-0752 -22-0402 -I-1, though its provisions dismiss both that appeal and the
instant appeal. PFR File, Tab 8 at 6 -7. The enforcement provision states that the
agreement “will be entered into the record of the above -captioned MSPB appeal and the
MSPB will retain jurisdiction to enforce the terms of the agreement.” Id. at 8. Because
“the above -captioned appeal” is MSPB Docket No. CH -0752 -22-0402 -I-1, we find that
the terms of the agreement do not provide that the agreement will be entered into the
record for enforcement in the appeal now before us. Id. We note that the agreement
was entered into the record for enforcement in MSPB Docket No . CH -0752 -22-0402 -I-1
by order of the administrative judge. 0402 IAF, Tab 45 at 2.
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 eac h of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information .
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calend ar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petitio n to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 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:
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 add ressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described i n section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
Decembe r 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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.
8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/ CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BRADLEY_SHANNON_CH_1221_21_0037_W_1_FINAL_ORDER_1990935.pdf | 2023-01-06 | null | CH-1221 | NP |
3,834 | https://www.mspb.gov/decisions/nonprecedential/GUZMAN_JORGE_M_SF_0752_15_0170_C_1_ORDER_1990939.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JORGE M. GUZMAN,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
SF-0752 -15-0170 -C-1
DATE: January 6, 2023
THIS ORDER IS NONPRECEDENTIAL1
James P. Walsh , Long Beach, California, for the appellant.
Carolyn D. Jones , Esquire, Williston, Vermont, for the agency.
John B. Barkley , Esquire, Phoenix, Arizona, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
ORDER
¶1 The agency has filed a pe tition for review of the compliance initial
decision, which found that the agency was not in compliance with the Board’s
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
final decision reversing the appellant’s removal . For the reasons set forth below ,
we DENY the agency’s petition for review and AFFIRM the compliance initial
decision ’s finding that the agency is in noncompliance , AS MODIFIED to set
forth additional precedent supporting the administrative judge’s analysis .
Because of the changed circumstances since the compliance initial decision was
issued, we FURTHER MODIFY the compliance initial decision to clarify how the
agency can meet its obligation to provide the appellant with status quo ante relief.
BACKGROUND
¶2 The agency issued a decision removing the appellant from his Assistan t
Special Agent in Charge position, a law secondary enforcement officer (LEO)
position under the Federal Employees’ Retirement System (FERS). Guzman v.
Department of Homeland Security , MSPB Docket No. SF -0752 -15-170-I-1, Initial
Appeal File (IAF), Tab 6 at 18, 20 -24, Tab 52 at 92. The agency charged the
appellant with lack of candor. IAF, Tab 10 at 268. The appellant retired in lieu
of removal on November 21, 2014.2 IAF, Tab 6 at 18.
¶3 On appeal, the appellant denied the misconduct and alleged, among other
things, that the removal constituted retaliation for whistleblowing. IAF, Tabs 1,
24. The administrative judge properly found that the Board had jurisdiction over
the removal actio n.3 Guzman v. Department of Homeland Security , MSPB Docket
No. SF -0752 -15-0170 -I-2, Appeal File (I -2 AF), Tab 39, Initial Decision (I -2 ID)
2 There is no evidence that the agency rescinded the action removing the appellant from
his position after the effective date of his retirement. See Jenkins v. Merit Systems
Protection Board , 911 F.3d 1370 , 1374 (Fed. Cir. 2019) (holding that an appeal in
which a removal has been cancelled and its consequences eliminated does not implicate
5 U.S.C. § 7701 (j), which prohibits the Board from taking an individual’s retirement
status into account in determining whether it has jurisdiction over a removal, because
the case no longer involve s a removal) .
3 When an employee decides to retire because his employing agency has issued a
decision to remove him, and the employee retires on the date the removal was to
become effective, the employee does not lose the right to file a Board appeal conte sting
the removal. Scalese v. Department of the Air Force , 68 M.S.P.R. 247 , 249 (1995).
3
at 1-2, 4-5.4 She also found that the agency failed to prove its charge, I -2 ID
at 14-27, and that the appellant p roved his allegation of retaliation for
whistleblowing , I-2 ID at 30 -39. She reversed the agency’s action and ordered
the agency to cancel the removal, to retroactively restore the appellant effective
November 21, 2014 , and to pay the appellant th e approp riate amount of back pay,
with interest , and benefits in accordance with the Office of Personnel
Management ’s regulations . I-2 ID at 39 -40. She informed the appellant of his
right to file a petition for enforcement if the agency did not comply with her
order. I-2 ID at 40. The initial decision became the final decision of the Board
when neither party filed a petition for review. 5 C.F.R. § 1201.113 .
¶4 In implementing the Board’s order to reinstate the appellant, the agency
issued a Standard Form 50 (SF-50) cancelling his voluntary retirement, effective
November 21, 2014. Guzman v. Department of Homeland Security , MSPB
Docket No. SF -0752 -15-0170 -C-1, Compliance File (CF), Tab 6 at 31. On the
same date that the cancellation was effected, the agency issued a second SF -50
with an effective date of July 31, 2016, the end of the month in which the
appellant reached his 57th birthday, mandatorily retiring him pursuant to 5 U.S.C.
§ 8425 (b)(1). Id. at 15, 32, 40. The agency stated that the retirement action was
required because the appellant was subject to the mandatory retirement provisions
of section 8425(b)(1) that applied to LEO s. Id. at 15. Based on these actions, the
agency calculated back pay and related compensation, leave, and benefits based
on the period between November 21, 2014, and July 31, 2016. Id.; CF, Tab 7
at 10-13. Because of the allegedly mandatory separation, the agency did not
restore the appellant to duty. CF, Tab 6 at 15.
4 The administrative judge dismissed th e first -filed appeal without prejudice, finding
that a dismissal without prejudice was appropriate to ensure the parties had ample time
to prepare for hearing. IAF, Tab 70. The appeal was automatically refiled on August 1,
2015. I -2 AF, Tab 1.
4
¶5 The appellant filed a petition for enforcement alleging that the agency had
not complied with the Board’s order because, notwithstanding the agency’s
assertion that the appellant’s retire ment was mandatory, his separation in
July 2016 failed to comply with all of the provisions of section 8425(b)(1). CF,
Tab 1 at 6 -9. In particular, the appellant asserted that the agency failed to comply
with the provisions of section 8425(b)(1) requirin g the agency to notify the
employee in writing of the date of separation at least 60 days before that date and
stating that an action to separate the employee is not effective, without the
consent of the employee, until the last day of the month in which t he 60 -day
notice expires. CF, Tab 14 at 5-6.
¶6 The administrative judge agreed with the appellant. She found that, in
order to subject the appellant to the statute’s mandatory separation provision, the
statute required the agency to give him 60 days’ not ice and not mandatorily
separate him until the end of the notice period. CF, Tab 21, Compliance Initial
Decision (CID) at 7. She ordered the agency to restore the appellant to duty and
provide him the appropriate notice under 5 U.S.C. § 8425 . CID at 8. She found
that the appellant was entitled to back pay until the date of his restoration to duty,
and to regular pay after that date until, at minimum, the end of the 60 -day notice
period. Id.
¶7 In its petition for review, the agency asserts that the administrative judge
erred in ordering it to restore the appellant to duty and provide him with a 60 -day
notice pursuant to 5 U.S.C. § 8425 (b)(1). Petition for Review (PFR) File, Tab 5.5
5 The app ellant responded to the petition. PFR File, Tab 7. The response is 58 pages
long, consisting of 18 pages of facts and argument and 40 pages of exhibits. Id.
Accompanying the response is a motion to file an oversize d pleading of 58 pages. PFR
File, Tab 8. A response to a petition for review is limited to 30 pages or 7500 words,
whichever is less, exclusive of any table of contents, table of authorities, attachments,
and certificate of service. 5 C.F.R. § 1201.114 (h). Therefore, the appellant’s motion is
denied as unnecessary. The appe llant’s exhibits are dated after the close of the record
below. PFR File, Tab 7 at 23 -61; CF, Tabs 9, 16 . Even assuming that they were
unav ailable , despite the appellant's due diligence, when the record closed, they do not
5
ANALYSIS
We agree with the administrative judge that the agency is not in compliance with
the Board’s order.
¶8 Pursuant to 5 U.S.C. § 7701 (j), an app ellant who retires in the face of a
final removal decision, and whose removal subsequently is invalidated, is entitled
to the same relief as if he did not retire , i.e., status quo ante relief . Paula v.
Social Security Administration , 119 M.S.P.R. 138, ¶ 14 (2013). Status quo ante
relief requires placing the injured party, as nea r as possible, in the position he
woul d have held had the wrong not been committed. Kerr v. National Endowment
for the Arts , 726 F.2d 730 , 733 n.3 (Fed. Cir. 1984). At issue here is the nature
and extent of the status quo ante relief to which the appellant is entitled under
section 8425(b)(1).
¶9 Section 8425(b)(1) provides for the mandatory separation of an LEO who is
otherwise eligible for immediate retirement under FERS, such as the appellant, on
the last day of the month in which that LEO becomes 57 years of age or
completes 20 years of service if then over that age. The section also provides in
relevant part:
The employing office shall notify the employee in writing of the date
of separation at least 60 days before that date. Action to separate the
employee is not effective, without the consent of the employee, until
the last day of the month in which the 60 -day notice expires.
5 U.S.C. § 8425 (b)(1). The agency contends that the administrative judge
improperly interpreted the status quo ante relief to which the appellant is entitled
under the quoted provision of section 8425(b)(1).
¶10 The Board has not issued any precedential decision regarding the
interpretation of these sentences. Essentially identical sentences appear in
another statutory provision, 5 U.S.C. § 8335 (b)(1), which provides for the
mandatory separation of an LEO who is otherwise eligible for retirement under
address the dispositive issue in this case, which is a question of statutory interpretation,
and thus are not material to the outcome in this case. See 5 C.F.R. § 1201.115 (d).
6
the Civil Service Retirement System on the last day of the month in which that
LEO becomes 57 years of age. Section 8335(b)(1) similarly provides in relevant
part:
The employing office shall notif y the employee in writing of the date
of separation at least 60 days in advance thereof. Action to separate
the employee is not effective, without the consent of the employee,
until the last day of the month in which the 60 -day notice expires.
5 U.S.C. § 8335 (b)(1). Although section 8335(b) was first enacted as part of Pub.
L. No. 93–350, 88 Stat. 355 (July 12, 1974), and section 8425 was enacted as part
of Pub. L. No. 99 -335, 100 Stat. 514, 540 (June 6, 1986 ), these sections providing
for mandatory age -based separation may be given the same interpretation.
Eatmon v. Department of Energy , 79 M.S.P.R. 96, ¶ 6 (1998), vacated on other
grounds by Eatmon v. Department of Energy , 84 M.S.P.R. 496 (1999).
¶11 In Lynch v. Nelson , Civ. A. No. 87 –0424, 1987 WL 8502 ( D.D.C. Mar. 11,
1987), the United States District Court for the District of Columbia was called
upon to interpret section 8335(b)(1). In that case, an LEO employed by the
Immigration & Natu ralization Service (INS) and separated, after the Board
mitigated his removal, because he had reached 55 years of age ,6 contended that
the INS never properly notified him of any separation, that he never consented to
his separation, and that he was legally entitled to 60 days ’ written notice before
his employment ended. Lynch , 1987 WL 8502, at *1.
¶12 The court briefly laid out the administrative history of the case. In
January 1985, INS placed the plaintiff on enforced sick leave from his job as a
Border Patrol Intelligence Agent. Four months later, INS removed him on
various charges. The plaintiff thereupon filed an appeal with the Board of this
removal and the prior enforced sick leave. A Board administrative judge
mitigated the removal to a 30 -day suspension. The decision was affirmed by the
6 The statute was amended after the issuance of this decision to increase the mandatory
retirement age for LEOs to age 57. See Isabella v. Department of State , 106 M.S.P.R.
333, ¶ 41 n.12 (2007), aff’d on recons. , 109 M.S.P.R. 453 (2008 ).
7
Board in a Final Order that required the INS to cancel the enforced sick leave and
the removal and to substitute therefor a 3 0-day suspension. Lynch v. Department
of Justice , 32 M.S.P.R. 33, 43 (1986).
¶13 The court explained that INS never complied with the Board’s order, which
the same administrative judge later decided implicitly included a requirement that
the agency return the plaintiff to duty in his position of GS -11 Intelligence Agent.
Lynch , 1987 WL 8502, at *1. Rather, INS notified the plaintiff that he had been
separated from the agency effective May 31, 1986, the last day of the month of
his 55th birthday, and that he would not be reinstated to his job. Id. When the
plaintiff filed a petition for enforcement of the Board’s order, INS sent him a
telex informin g him that in the event the retroactive notice to May 31, 1986, was
ineffective, he would now be on notice that his retirement would take effect
60 days hence, on February 28, 1987. Id.
¶14 The plaintiff thereafter filed a civil action with the court, and on
February 20, 1987, the court issued a temporary restraining order (subsequently
extended through March 12, 1987), prohibiting INS from discharging the
plaintiff. Id. While the temporary restraining order was in effect, the
administrative judge issued his opinion on February 27, 1987, finding that INS
would not be in compliance with the earlier Board order until it reinstated
plaintiff to his job. Id. Thereafter, the INS did, in fact, reinstate the plaintiff to
his job on March 5, 1987, but made it clear that he would once again be removed
as soon as the court’s temporary restraining order expired. The plaintiff then
moved for a preliminary injunction. Id.
¶15 The court found that the sole question remaining was whether INS ever
properly separated the plain tiff from his job. Lynch , 1987 WL 8502, at *2. The
court found that section 8335(b)(1) “could not be more explicit” in its
requirement that no law enforcement officer may be separated without 60 days ’
written advance notice. Id. It found, therefore, th at INS’ s attempt on
December 29, 1986, to notify the plaintiff of his removal 7 months previously did
8
not constitute a lawful notice because it was not given in advance of the
separation with at least 60 days further service to follow. Id.
¶16 The court found that the February 27, 1987 notice was likewise legally
ineffective. Id. When that notice was provided, the plaintiff was not, in fact,
employed by INS because the agency had failed to reinstate him in compliance
with the Board’s order. Id. Thus, INS d id not and obviously could not comply
with the statute’s requirement that it “notify the employee” at least 60 days before
his retirement. Id. The court found that the 60 -day notice to be provided an
“employee” pursuant to section 8335(b)(1) has “substantive meaning and
benefits” not discharged by a notice, such as that given by INS, that was both
retroactive and prospective in its application. Id.
¶17 While the Board is not bound by the decision of the court in Lynch , the
Board may look to it for guidance to the extent it finds the court’s reasoning
persuasive. See Holton v. Department of the Navy , 123 M.S.P.R. 688, ¶ 23 n. 6
(2016), aff’d , 884 F.3d 1142 (Fed. Cir. 2018) ; Mynard v. Office of Personnel
Management , 108 M.S.P.R. 58, ¶¶ 13-16 (2008); Walker v. Department of the
Army , 104 M.S.P.R. 96, ¶ 11 n.2 (2006). Here, we find the court’s reasoning
persuasive. Moreover, it is particularly appropriate to follow the court’s guidance
in Lynch because it appears that the court was ag reeing with the decision of the
Board’s administ rative judge, with which the full Board implicitly agreed in a
Final Order. See Lynch v. Department of Justice , MSPB Docket
Nos. SE075285C0179, SE075285C0182, Order (Sept. 4, 1987).
¶18 Because the language of section 8335(b)(1) that was interpreted by the c ourt
is identical to the language of section 8425(b)(1), we find that the 60 -day notice
to be provided an employee pursuant to section 8425(b)(1) has substantive
meaning and benefits and must be discharged according to the plain language of
the statute. T hus, an agency with an employee subject to the provisions of
section 8425(b)(1) must notify the “employee ” in writing of the date of separation
at least 60 days in advance thereof. Also, an a ction to separate the employee is
9
not effective, without the consent of the employee, until the last day of the month
in which the 60 -day notice expires. For these reasons, we affirm the
administrative judge’s conclusion that the agency was not in compliance with the
Board’s order at the time that the compliance initial decision was issued.
As a result of the changed circumstances since the compliance initial decision
was issued, we clarify the agency’s obligation to provide status quo ante relief to
the appellant.
¶19 Following the issuance o f the compliance initial decision, the agency could
have restored the appellant and provided him with 60 days’ notice before
mandatorily separating him. During this 60 -day period, the appellant could have
sought from the agency head an exemption from mand atory retirement until he
reached age 60, per 5 U.S.C. § 8425 (b)(1).7 Once the appellant was restored and
the 60 -day notice period expired, the agency could have then mandatorily retired
him if th e exemption request was denied , which likely would have ended the
agency’s obligation to provide further status quo ante relief .8
¶20 However, the issue of status quo ante relief is complicated by the fact that
the appellant turned 60 on July 28, 2019 , while the agency’s petition for review
was pending. CF, Tab 6 at 31 . Because age 60 was the mandatory retirement age
if the agency head granted an exemption request,9 the Board lacks the authority to
7 The record reflects that the appellant repeatedly asked for information about how to
request such an e xemption. CF, Tab 12 at 4, 22, Tab 14 at 17.
8 The agency argues that providing the appellant with back pay and benefits beyond the
end of the month in which he turned 57 would place him in a better position than if he
had not retired in lieu of removal and exceeds status quo ante relief . PFR File, Tab 5
at 9-10. While the agency is correct that it is uncertain whether the appellant would
have been granted an exemption from the mandatory retirement age, i t was the agency’s
wrongful adverse action that led to the appellant’s retirement prior to reaching age 57,
and the agency’s subsequent failure to restore the appellant and provide him with the
statutorily required 60 -day notice once the action was reversed that extended the period
of back pay even longer. Thus, we are not persuaded by the agency’s argument in this
regard.
9 Pursuant to 5 U.S.C. § 8425 (e), the President, by Executive Order, may exempt an
employee from automatic separation if the pu blic interest so requires. There is
10
order the agency to retroactive ly restore the appellant and /or to provide 60 days’
notice before mandatorily separating him . Nevertheless , the agency remains
obligated to provide the appellant with , as nearly as possible , status quo ante
relief. Kerr , 726 F.2d at 733. Under the circumstances of this matter —including
the agency’s failure to restore the appellant and to comply with the 60 -day notice
provision of 5 U.S.C. § 8425 (b)(1) and the fact that the appellant is now over age
60—the agency can provide the appellant with meaningful status quo ante relief
by (1) cancel ing the November 21, 2014 retirement , (2) provid ing the appellant
with the appropriate amount of back pay , with interest, and adjust ing his benefits
with appropriate credits and deductions in accordance with the Office of
Personnel Management’s regulations for the period of November 21, 2014,
through July 31, 2019 , and (3) process ing his mandatory retirement, effective
July 31, 2019.10
ORDER
¶21 We ORDER the agency to submit to the C lerk of the Board within 60 days
of the date of this Order satisfactory evidence of compliance as described herein.
This evidence shall adhere to the requirements set forth in 5 C.F.R.
§ 1201.183 (a)(6)(i), including submission of evidence and a narrative statement
of compliance. The agency must serve all parties with copies of its submissions.
¶22 The agency’s submission should be filed under the new docket number
assigned to th e compliance referral matter, SF -0752 -15-0170 -X-1. All
subsequent filings should refer to the compliance referral docket number set forth
above and should be faxed to (202) 653 -7130 or mailed to the following address:
insufficient evidence that, even if the appellant made such a request, that it would have
been granted under the circumstances. Therefore, we do not consider this provision in
our analysis of status quo ante relief.
10 We acknowledge that the agency has partially complied with this order because it has
already cance lled the November 21, 2014 retirement and calculated back pay and
related compensation, leave, and benefits based on the period between November 21,
2014, and July 31, 2016. Supra ¶ 4.
11
Clerk of the Board
U.S. Merit Systems Protection Board
1615 M Street, N.W.
Washington, D.C. 20419
Submissions may also be made by electronic filing at the MSPB’s e -Appeal site
(https://e -appeal.mspb.gov ) in accordance with the Board’s regulation at 5 C.F.R.
§ 1201.14 .
¶23 The appellant may respond to the agency’s evidence of compliance within
20 days of the date of service of the agency’s submission. 5 C.F.R.
§ 1201.183 (a)(8). If the appellant does not respond to the agency’s evidence of
compliance, the Board may assume that he is satisfied with the agency’s actions
and dismiss the petition for enforcement.
¶24 The agency is remi nded that, if it fails to provide adequate evidence of
compliance, the responsible agency official and the agency’s representative may
be required to appear before the General Counsel of the Merit Systems Protection
Board to show cause why the Board should not impose sanctions for the agency’s
noncompliance in this case. 5 C.F.R. § 1201.183 (c). The Board’s authority to
impose sanctions includes the authority to order that the responsibl e agency
official “shall not be entitled to receive payment for service as an employee
during any period that the order has not been complied with.” 5 U.S.C.
§ 1204 (e)(2)(A).
¶25 This Order does not c onstitute a final order and is therefore not subject to
judicial review under 5 U.S.C. § 7703 (a)(1). Upon the Board’s final resolution of
12
the remaining issues in this petition for enforcement, a final order shall be issued
which shall be subject to judicial review.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | GUZMAN_JORGE_M_SF_0752_15_0170_C_1_ORDER_1990939.pdf | 2023-01-06 | null | SF-0752 | NP |
3,835 | https://www.mspb.gov/decisions/nonprecedential/GUZMAN_JORGE_M_SF_0752_15_0170_P_3_REMAND_ORDER_1990958.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JORGE M. GUZMAN,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER S
SF-0752 -15-0170 -P-3
SF-0752 -15-0170 -P-4
DATE: January 6, 2023
THIS ORDER IS NONPRECEDENTIAL1
James P. Walsh , Esquire, Long Beach, California, for the appellant.
Carolyn D. Jones , Esquire, Williston, Vermont, for the agency.
Dawn M. Harris , Philadelphia, Pennsylvania, for the agency.
John B. Barkley , Esquire, Phoenix, Arizona, for the agency.
BEFORE
Cathy A. Harri s, 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
REMAND ORDER
¶1 The agency has filed a petition for review and the appellant has filed a cross
petition for review of the addendum initial decision, which granted in part the
appellant’s mo tions for consequential and compensatory damages pursuant to
5 U.S.C. § 1221 (g)(1)(A)(ii). For the reasons discussed below, we GRANT the
agency’s petition for review and deny the appellant’s cross petition for review.
We AFFIRM the administrative judge’s finding that the appellant is not entitled
to recover damages based on the 2011 withdrawal of funds from his Thrift
Savings Plan (TSP) account or for business expenses and start -up capitalization .
We VACATE as duplicative the administrative judge’s finding that the appellant
is entitled to back pay and related benefits as consequential damages. We further
VACATE the administrative judge’s analysis of the appellant’s entitlement to
damages for medical expenses and treatment and nonpecuniary compensatory
damages. We REMAND the case to the Western Regional Office for the
administrative judge to adjudicate the appellant’s entitlement to medical expenses
and treatment and nonpecuniary compensatory damages in accordance with this
Remand Order.
BACKGROUND
¶2 The following facts, as recited in the addendum initial decision, are
generally undisputed. Guzman v . Department of Homeland Security , MSPB
Docket No. SF -0752 -15-0170 -P-3, Appeal File (P -3 AF), T ab 20, Addendum
Initial Decision (AID). The administrative judge reversed the removal action
because the agency failed to prove its charge and because the appellant proved his
affirmative defense of whistleblower reprisal. AID at 2, 4 -5; Guzman v.
Depart ment of Homeland Security , MSPB Docket No. SF -0752 -15-0170 -I-2,
Initial Decision (ID) at 27, 39 (Sept. 29, 2017). The merits initial decision
became the Board’s final decision when neither party filed a petition for review.
AID at 1.
3
¶3 The appellant file d timely motions for compensatory and consequential
damages, and the matters were joined. AID at 2; Guzman v. Department of
Homeland Security , MSPB Docket No. SF -0752 -15-0170 -P-1, Appeal File
(P-1 AF), Tab 3 at 2; Guzman v. Department of Homeland Security , MSPB
Docket No. SF-0752 -15-0170 -P-2, Appeal File, Tab 3 at 2.2 The joined matters
were dismissed without prejudice and refiled. AID at 2; P -1 AF, Tab 29; P -3 AF,
Tab 1; Guzman v. Department of Homeland Security , MSPB Docket No. SF -0752 -
15-0170 -P-4, App eal File, Tab 1.3 A hearing was held. AID at 2; P-3 AF,
Tabs 11, 16.
¶4 The administrative judge issued an addendum initial decision, which
granted in part the appellant’s motions for consequential and compensatory
damages. AID at 2. In particular, she fo und that the expanded damages
provisions under the Whistleblower Protection Enhancement Act of 2012
(WPEA) applied because the removal action occurred after the WPEA’s effective
date.4 AID at 5 -6. She determined that the appellant was entitled to back pa y and
related benefits as consequential damages. AID at 7-9. The administrative judge
also awarded as consequential damages $12,956 for medical expenses and
treatment and future medical expenses.5 AID at 12 -14. However, she concluded
that the appellant was not entitled to recover consequential damages for the
following: (1) the lost value of a 2011 withdrawal from his TSP investment,
related penalties, and lost earnings, as well as expert witness fees that he incurred
to support his claim of entitlemen t to such damages; and (2) business expenses
2 Because the P -1 and P -2 matters were joined, we will only cite to “P -1 AF.”
3 Because the P -3 and P -4 matters were joined, we will only cite to “P -3 AF.”
4 Neither party challenges the administrative judge’s ruling in this regard.
5 The administrative judge noted that the appellant’s request for pecuniary
compensatory damages was coextensive with his request for consequential damages,
and she stated that th e request for pecuniary damages was granted to the full extent
found therein and was otherwise moot. AID at 2.
4
and start -up capitalization.6 AID at 10 -12, 15 -17. Finally, she found that the
appellant was entitled to an award of $250,000 in nonpecuniary compensatory
damages. AID at 2, 17 -26.
¶5 The agency has filed a petition for review, the appellant has filed a
response, and the agency has filed a reply. Guzman v. Department of Homeland
Security , MSPB Docket No. SF -0752 -15-0170 -P-3, Petition for Review (P-3 PFR)
File, Tabs 1, 3, 5. The agency certifies that it has begun the process to pay the
appellant $945 for pecuniary damages and $5,000 in nonpecuniary damages, but
it contests on review the remaining amounts awarded to the appellant. P -3 PFR
File, Tab 1 at 28. The appellant has filed a cr oss petition for review, and the
agency has filed a response. P -3 PFR File, Tabs 3, 6.
DISCUSSION OF ARGUME NTS ON REVIEW
Legal Standard7
¶6 As the prevailing party in a Board appeal in which the administrative judge
ordered corrective action based upon a f inding of whistleblower reprisal, the
appellant is entitled to an award of “backpay and related benefits, medical costs
incurred, travel expenses, any other reasonable and foreseeable consequential
damages, and compensatory damages (including interest, rea sonable expert
6 The appellant does not challenge the administrative judge ’s decision not to award
damages for business expenses and start -up capitalization because they were not
reasonably foreseeable losses. Guzman v. Department of Homeland Security , MSPB
Docket No. SF -0752 -15-0170 -P-3, Petition for Review File, Tab 3 at 15 -16. We
discern no error with the administrative judge’s analysis in this regard, an d we affirm
her finding herein. See, e.g. , 5 U.S.C. § 1221 (g)(1)(A)(ii) (stating that corrective action
may include “reasonabl e and foreseeable consequential damages ”).
7 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit. However, as a result of changes initiated by the Whistleblower
Protection Enhancement Act of 2012 , Pub. L. No. 112 -199, § 108, 126 Stat. 1465, 1469,
extended for 3 years in the All Circuit Review Extension Act, Pub. L. No. 113 -170, § 2,
128 Stat. 1894 (2014), and eventually made permanent in the All Circuit Review Act,
Pub. L. No. 115 -195, 132 Stat. 1510 (201 8), we must consider this matter with the view
that the appellant may seek review of this decision before any appropriate court of
appeal. See 5 U.S.C. § 7703 (b)(1)(B).
5
witness fees, and costs).” 5 U.S.C. § 1221 (g)(1)(A)(ii); see King v. Department
of the Air Force , 122 M.S.P.R. 531, ¶ 7 (2015).
¶7 Compensatory damages include pecuniary losses , future pecuniary losses,
and nonpecuniary losses such as emotional pain, suffering, inconvenience, mental
anguish, and loss of enjoymen t of life. Hickey v. Department of Homeland
Security , 766 F. App’x 970, 976 -77 (Fed. Cir. 2019);8 5 C.F.R. § 1201.201 (c).
Compensatory damages are designed to compensate the appellant for actual harm,
not to punish the agency. Hickey , 766 F. App’x at 977. To be entitled to
compensatory damages, an appellant must prove that the emotional harm was
actually caused by the retaliatory activities determined to have been unlawful and
the dam ages sought reflect the nature and severity of the harm and its duration or
expected duration.9 Id. at 97 7-78.
¶8 To receive an award of consequential damages, an appellant must prove that
he incurred consequential damages and that his claimed damages were reasonable,
foreseeable, and causally related to the agency’s prohibited personnel practice.
King , 122 M.S.P.R. 531, ¶ 7 (citing Johnston v. Department of the Treasury ,
100 M.S.P.R. 78, ¶ 13 (2005)) ; see 5 C.F.R. § 1201.202 (b).
8 The Board may follow a nonprecedential decision of a cour t when, as here, it finds its
reasoning persuasive. Edwards v. Department of Labor , 2022 MSPB 9 , ¶ 16 n.6.
9 The administrative judge correctly noted that case law regarding compensatory
damages in whistleblower reprisal cases is undeveloped, and she stated that it was
appropriate to apply the case law pertaining to compensatory damages in Equal
Employment Opport unity Commission (EEOC) cases by analogy and to give persuasive
authority to the regulatory guidance of the EEOC as it pertains to compensatory
damages. AID at 17. Both parties acknowledge that there is sparse case law on
compensatory damages awarded pur suant to 5 U.S.C. § 1221 (g). P-3 PFR File, Tab 1
at 13, Tab 3 at 16. The agency does not challenge the administrative judge’s decision to
look at EEOC compensatory damages cases by analogy. P-3 PFR File, Tab 1 at 13. The
appellant acknowledges that the Board’s practice of looking at EEOC compensatory
damages cases is “apt in many case[s],” but he asserts that it is not appropriate in this
case because his damages exceed the EEOC’s statutory cap of $300,000. P-3 PFR File,
Tab 3 at 16 -21. In our analysis of the appellant’s entitlement to compensatory damages
pursuant to 5 U.S.C. § 1221 (g), we may rely on the EEOC’s guidance regarding
comp ensatory damages to the extent we find it persuasive.
6
We affirm the administrative judge’s finding that the appellant is not ent itled to
recover damages based on the withdrawal of funds from his TSP account,
including penalties, lost earnings, and/or associated expert witness fees.
¶9 The addendum initial decision reflects that the appellant sought damages for
the following: (1) in O ctober 2011, the appellant withdrew $220,000 (and
received a net amount of $218,952.95) from his TSP account, largely to pay
attorney fees to defend himself in 2011 -2012 agai nst various agency actions;
(2) he incurred an additional tax liability of $107,87 1 plus interest and penalties
as a result of the withdrawal; and (3) he sought to recover the lost value of that
withdrawal, in the amount of $300,890, as well as $143,225 in damages for the
loss of return on his investment because he had to modify his por tfolio strategy to
a more conservative approach. AID at 10 -11.
¶10 The administrative judge found that the appellant was not entitled to
recover damages for the potential loss of income and the change to his investment
strategy because they were not reasona bly foreseeable.10 AID at 11. She also
found that he was not entitled to recover damages for the other claimed expenses
because the TSP withdrawal occurred in October 2011, approximately 3 years
before the removal action at issue, and those funds were wit hdrawn to defend
against other agency actions not at issue here, including the December 2010
execution of a search warrant, placement on administrative leave, and the
subsequent investigation and first 2012 notice of proposed removal.11 Id.
Because these expenses were not reasonably foreseeable to the removal action,
they were not recoverable. Id. Similarly, the administrative judge found that the
appellant was not entitled to recover as damages fees for an expert witness (who
evaluated the lost future v alue of the investment that he withdrew in 2011)
10 The appellant “accepts the disallowance of claims for losses associated with his
change of investment strategy” in the amount of $143,225 because it was not a
reasonably foreseeable loss. P -3 PFR F ile, Tab 3 at 15.
11 The appellant clarifies that he is “not here seeking the return of the $220,000 —that
was spent on lawyers and a Cross -Petition re: Attorney Fees is presently with the
Board.” P -3 PFR File, Tab 3 at 15.
7
because they were not related to any foreseeable injury sustained as a result of the
removal action. AID at 12.
¶11 In his cross petition for review, the appellant argues that he is entitled to an
award of pas t pecuniary damages in the amount of $107,871 for additional tax
liability, $300,890 in lost investment value, and expert witness fees to calculate
the lost investment value. P -3 PFR File, Tab 3 at 13 -15. We disagree. Indeed,
the appellant has offered n o legal authority to support his contention that any
expenses associated with his decision to withdraw substantial funds from his TSP
in 2011 —nearly 3 years before the March 7, 2014 notice of proposed removal and
to pay fees based on other agency actions i ndependent of the removal12—is a
reasonable and foreseeable consequence related to the removal action. We
acknowledge the appellant’s argument that the administrative judge was
inconsistent because she did not award damages related to the 2011 TSP
withdraw al, but she awarded $250,000 in nonpecuniary compensatory damages
and “frequent[ly] reference[d] . . . the harms suffered by [the a]ppellant in the
[4]-year period from July 2010 to April 2014.” P -3 PFR File, Tab 3 at 13 -14.
Any inconsistency in this reg ard in the addendum initial decision does not
warrant a different outcome on the issue of the appellant’s entitlement to recover
12 The administrative judge note d in the addendum initial decision that the appellant
filed a complaint with the Office of Special Counsel (OSC) regarding his placement on
administrative leave status and assignment of administrative duties , OSC issued a close
out letter on April 10, 2014 , and the appellant did not file an individual right of action
(IRA) appeal within 65 days as directed by OSC. AID at 3. Because the appellant did
not file an IRA appeal regarding these agency actions , there was no order for corrective
action, and the appellant is not entitled to recover damage s as a result of these agency
actions. 5 U.S.C. § 1221 (g)(1)(A)(ii). To the extent that there are other agency actions
unrelated to the 2014 removal that the appellant has not raised with OSC, and for which
he believes he is entitled to damages, there is no statutory time limit for filing a request
for corrective action with OSC . 5 U.S.C. § 1214 (a)(1)(A); McCarthy v. Merit Systems
Protection Board , 809 F.3d 1365 , 1375 (Fed. Cir. 2016); Augustine v. Department of
Justice , 50 M.S.P.R. 648 , 652 (1991).
8
pecuniary damages based on his 2011 withdrawal of funds from his TSP account,
including penalties, lost earnings, and/or associ ated expert witness fees.13
We vacate the administrative judge’s award of back pay and related benefits as
consequential damages because it is duplicative of the Board’s final decision in
the compliance matter.
¶12 In the addendum initial decision, the administrative judge awarded as
consequential damages back pay and benefits through the end of the month in
which the appellant attained age 60, or July 31, 2019. AID at 7 -9. This award
arose out of the fact that, in the final decision in the merits appeal, the removal
action was reversed and the agency was ordered to pay back pay and related
benefits to the appellant, effective November 21, 2014 (the date of his
retirement); the agency canceled the appellant’s retire ment, but it issued a
Standard Form 50 mandatorily retiring him with an effective date of July 31,
2016, pursuant to 5 U.S.C. § 8425 (b)(1).14 AID at 7; Guzman v. Department of
Homeland Security , MS PB Docket No. SF -0752 -15-0170 -C-1, Compliance Initial
Decision (CID) at 2 -3 (Aug. 3, 2018); ID at 39. After the appellant filed a
petition for enforcement, the administrative judge found that the agency did not
substantially comply with the Board’s final decision in the merits appeal because,
among other things, it did not give the appellant the required 60 days’ notice
before mandatorily separating him, and he was entitled to back pay to the date of
his restoration, to regular pay after that date, and to proper notice. CID at 7 -8.
The administrative judge noted in the addendum initial decision that the agency
13 In addition, as noted below, we are vacating the portion of the addendum initial
decision that awarded the appellant $250,000 in non pecuniary damages for further
analysis of the question of whether such damages may be based, in part, on the impact
of actions that predated the removal.
14 Section 8425(b)(1) of Title 5 of the U.S. Code states, in pertinent part, that a law
enforcement officer who attains the age of 57 shall be separated on the last day of the
month in which he becomes 57, unless the agency head exempts him from automatic
separation until the employee becomes 60 years old. 5 U.S.C. § 8425 (b)(1)
Additionally, section 8425(b)(1) requires that the agency “shall notify the employee in
writing of the date of separation at least 60 days before that date.”
9
filed a petition for review of the compliance initial decision. AID at 7 n.2. She
explained that her award of back pay and related benefits as co nsequential
damages was not intended to permit double recovery of back pay and benefits;
rather, she clarified that the appellant was due this remedy as a result of the
reversal of the agency’s action and his successful whistleblower reprisal claim.
AID a t 8-9 & n.3.
¶13 Both parties challenge the administrative judge’s decision to award back
pay and related benefits as consequential damages. P -3 PFR File, Tab 1 at 25
(arguing that the administrative judge’s award “assumes that [the appellant]
would have been granted a [3] -year waiver of his mandatory retirement date” and
unjustly enriches him), Tab 3 at 11 (contending that the administrative judge
exceeded her authority by awarding back pay and benefits as part of a
consequential damages award and noting that the back pay issue is pending in the
compliance matter).
¶14 We agree with the appellant that it is improper to address the issue of back
pay and related benefits in the damages appeal. The Board has issued an order in
the compliance matter, which clarifie d that because the appellant has reached the
age of 60, he is no longer entitled to reinstatement, but the agency is required to
pay him back pay and related benefits through July 31, 2019 (the month in which
he turned 60 years old) in order to be in compl iance with the Board’s final
decision in the merits appeal. We therefore vacate as duplicative the
administrative judge’s finding in the addendum initial decision that the appellant
is entitled to back pay and related benefits as consequential damages.
We vacate the administrative judge’s award of nonpecuniary damages and remand
this claim for further adjudication .
¶15 The administrative judge found that the appellant was entitled to
nonpecuniary damages because of the “deleterious effect caused by the agenc y’s
retaliation” in the areas of emotional pain, suffering, mental anguish, injury to
professional standing, injury to his character and reputation, and loss of
10
enjoyment of life. AID at 18. Importantly, the administrative judge noted that
the record was replete with statements, accounts, and recollections from the
appellant’s children, friends, and colleagues that “make it crystal clear that [he]
was harmed as a direct result of the agency’s retaliatory action.” AID at 22. The
administrative judge cons idered the testimony of the appellant, his witnesses, and
the statements presented, and she found that this evidence was “credible,
reliable[,] and useful to assist in ascertaining the damages suffered by the
appellant in this matter.” Id. She also state d that she gave “great weight” to
these statements, declarations, and testimony. Id. Significantly, the
administrative judge considered EEOC guidance and concluded that it was
appropriate to consider “the entirety of the action” —meaning from the appellant’s
placement on administrative duties on approximately March 1, 2013, to the
November 2014 decision —in considering his entitlement to compensatory
damages. AID at 3-4, 22 -23 (citing, among other things, 29 C.F.R.
§ 1614.107 (a)(5)).15 The administrative judge concluded that, for the areas of
severe, lasting injury, and for an injury extending for 5½-6 years, the appellant
proved an entitlement to $250,000 in nonpecuniary compensatory damages.
AID at 17-26.
¶16 On review, the agency contends that the administrative judge erred when
she failed to restrict her consideration o f nonpecuniary damages to th e 2014
removal action. P -3 PFR File, Tab 1 at 14 -15. It asserts that she explicitly
considered the appellant’s comments regarding the impact of his decision to
report unlawful witness tampering in 2010, and she discussed the evidence
stemming from the ag ency actions (such as an office search, grand jury
investigation, and threat of prison) that predated the March 7, 2014 notice of
15 This EEOC regulation states that an agency shal l dismiss an entire complaint “[t]hat
is moot or alleges that a proposal to take a personnel action, or other preliminary step to
taking a personnel action, is discriminatory, unless the complaint alleges that the
proposal or preliminary step is retaliator y.”
11
proposed removal. Id. at 15. The agency also asserts that the administrative
judge did not consider the appellant’s preexist ing conditions such as stress,
post-traumatic stress disorder, anger, estrangement, and physical pain, among
others. Id. at 15 -17. Conversely, the appellant argues that the award “does not
closely approach the compensation needed to give [ him] a make -whole remedy”
for, among other things, his “ruined reputation” and “destroyed career” and
damage that “is far more severe and long -lasting than most of the cases that come
before the EEOC and the Board.” P -3 PFR File, Tab 3 at 19 -21. Instead, th e
appellant advocates for an award of $1,000,000. Id. at 20 -21.
¶17 The administrative judge correctly noted in the addendum initial decision
that the only retaliatory personnel action at issue is the removal, which led to the
appellant’s retirement in lieu o f removal on November 21, 2014 . AID at 5. She
also correctly stated in the order and summary of telephonic status conference
that she was only authorized to award damages that stem from the adjudicated
removal action ; she noted that there may have been o ther personnel actions, but
the appellant did not file an IRA appeal, and she had no authority to award
damages that emanated from other personnel actions. P -1 AF, Tab 26 at 1-2.
¶18 Despite these statements, and her finding that an award is warranted
“becaus e there is more than adequate causal connection between the agency’s
retaliatory action and the appellant’s injury,” AID at 25, we acknowledge the
agency’s argument that the administrative judge improperly considered agency
actions that predated the 2014 r emoval action as well as the impact of those
actions on the appellant. See, e.g. , AID at 18 ( noting that the appellant stated
that, “from the time of his decision to report what he believed was unlawful
witness tampering, he describe s a ‘living nightmare – a nightmare that continue to
this very day’”), 19-20 (describing that, when the appellant was returned to duty
on March 4, 2013, he was not given any work assignments of any consequence,
and he was not included in management meetings, or on management em ails,
among other things), 21 (describing the appellant’s wife’s testimony about the
12
appellant when he was on administrative leave and administrative duties). We
agree that the administrative judge did not clearly explain her rationale for
awarding damage s in this regard, particularly where she appeared to rely on
agency actions that predated the 2014 removal action .
¶19 We wish to briefly discuss one issue that was not raised by the
administrative judge or the parties. The WPEA added 5 U.S.C. § 1221 (g)(4),
which states that “[a]ny corrective action ordered under this section to correct a
prohibited personnel practice may include . . . damages reasonably incurred due
to an agency investigation of the employee, if such investigation was commenced,
expanded, or extended in retaliation for the disclosure . . . that formed the basis of
the corrective action. ” According to the legislative history, section 1221(g)(4)
“create[d] an addit ional avenue for financial relief once an employee is able to
prove a claim under the [whistleblower protection statutes], if the employee can
further demonstrate that an investigation was undertaken in retaliation for the
protected disclosure.” S. Rep. N o. 112 -155, at 21 (2012); see Sistek
v. Department of Veterans Affairs , 955 F.3d 948 , 955 (Fed. Cir. 2020)
(concluding that retaliatory investiga tions do not qualify as personnel actions
under the whistleblower protection statutes, but they “may provide a basis for
additional corrective action if raised in conjunction with one or more of the
qualifying personnel actions specified by [5 U.S.C.] § 23 02(a)(2)(A)”).16
¶20 In analyzing the appellant’s whistleblower reprisal claim in the merits
appeal, the administrative judge noted that the appellant provided preponderant
evidence that his 2010 disclosure prompted the agency to initiate the credentials
invest igation, which led to the agency reopening the investigation into the 2004
microphone discovery, the culmination of which was the removal action. ID
at 34. If an agency investigation was “commenced, expanded, or extended in
retaliation for” the appellant ’s whistleblowing disclosure, the appellant may be
16 The appellant’s chapter 75 removal was a personnel action pursuant to 5 U.S.C.
§ 2302 (a)(2)(A)(iii).
13
entitled to “damages reasonably incurred” due to any such investigation —as long
as such damages were incurred after the December 27, 2012 effective date of the
WPEA. 5 U.S.C. § 1221 (g)(4) ; King v. Department of the Air Force ,
119 M.S.P.R. 663, ¶ 3 (2013). However, because the applicability of 5 U.S.C.
§ 1221 (g)(4) is an issue of first impression before the Board that was not raised
by or before the administrative judge, the parties were not given an opportunity to
brief the applicability of this provision or its impact on the appellant’s
entitlement to compensatory and/or consequential damages. Accordingly, we
vacate the administrative judge’s analysis and remand the issue of the appellant’s
entitlement to nonpecuniary compensatory damages for further adjudication.17
¶21 As noted above , the administrative judge held a hearing and made implicit
demeanor -based credibility determinations. AID at 22; see Purifoy v. Department
of Veterans Affairs , 838 F.3d 1367 , 1373 (Fed. Cir. 2016) (finding that the Board
must defer to an administrative judge’s demeanor -based credibility
determinations “[e ]ven if demeanor is not explicitly discussed”). The
administrative judge therefore is in the best position to reevaluate the evidence
and analyze the issues that we have discussed herein. Accordingly, w e remand
the appeal to the administrative judge to i ssue a new addendum initial decision
that incorporates our findings and evaluates the appellant’s entitlement to
nonpecuniary compensatory damages based on the removal action per 5 U.S.C.
17 We are not persuaded by the administrative judge’s reliance on 29 C.F.R.
§ 1614.107 (a)(5) to justify her consideration of the appellant’s assignment of
administrative duties in March 2013 as part of a damages award related to the removal.
AID at 22 -23. The administrative judge noted that the appellant exhausted his claim
with OSC that the agency’s decision to place him on administrative duties was
retaliatory, and he could have filed, but did not file, an IRA appeal regarding this claim.
AID at 3. If the appellant had filed an IRA appeal and was successful, he could have
been granted corrective action and awarded damages based on the assignment of
administrative duties. Because the appellant failed to file an IRA appeal regarding the
assignment of administrative duties (or any other personnel action), our authority under
5 U.S.C. § 1221 (g)(1)(A)(ii) to award damages only stems from the removal action.
14
§ 1221 (g)(1)(A)(ii) and, if applicable, 5 U.S.C. § 1221 (g)(4) .18 The new
addendum initial decision should include a thorough and specific explanation for
the administrative judge’s award of damages in this regard. See, e.g. , Hickey ,
766 F. App’x at 978 (noting that Mr. Hickey’s request for compensatory damages
included all of his original claims in his IRA appeal, instead of the three instances
of misconduct for which the Board determined he was entitled to recover, and
concluding that he was only entitled to recover compensatory damages for the
three instances of unlawful misconduct) ; see generally EEOC Enforcement
Guidance: Compensatory and Punitive Damages Available Under § 102 of the
Civil Rights Act of 1991, 1992 WL 1364354 , at *5 (Jul y 14, 1992) ( EEOC
Guidance) (“An award for emotional harm is warranted only if there is sufficient
causal connection between the [agency’s] illegal actions and the complaining
party’s injury.”).
We also vacate the administrative judge’s award of damages for the appellant’s
medical expenses and treatment and remand for further adjudication.
¶22 In her analysis of the appellant’s entitlement to damages for medical
expenses and treatment, the administrative judge noted that the relevant time
frame started on March 7, 2014 (the notice of proposed removal), and it was
undisputed that, starting on this date, the appellant had uncovered medical
expenses consisting of copays for psychiatric, psychological, and pr imary care
providers. AID at 12. She also discussed the appellant’s self -report that (1) his
mental health declined between April and November 2014, (2) he was “falling
apart,” (3) he had stomach disorders, chest pains, depression, and stress, (4) he
attributed these problems to the agency’s retaliation against him, and (5) these
problems continue to adversely impact his health. AID at 13. The administrative
18 Because we are vacating and remandin g this claim for damages, we need not address
the parties’ substantive arguments on review relating to this claim. However, the
administrative judge has discretion to reopen the record to allow the parties to present
evidence and/or argument on the specif ic issues that are being remanded.
15
judge awarded $630 for past psychiatric care from April 2014 to February 2018,
$800 for the peri od from February 2018 to September 2020, and $960 for future
psychiatric care copays for 3 years, for a total of $2,390. Id. The administrative
judge acknowledged that the appellant’s therapist passed away and her records
were not included in the Board’s record, concluded that the appellant was entitled
to recover out -of-pocket expenses for therapy and counseling, and awarded
$7,200 for psychological counseling for 3 years. AID at 13 -14.
¶23 Regarding his primary care physician, the administrative judge
acknowledged that “not all of each office visit was due to issues related to the
mental and physical impacts suffered as a result of the agency’s actions,” but she
found that “80% of the charges incurred since April 2014 are fairly attributable,
directly or indirectly, to the agency, and should be borne by the agency to
recompense for the appellant’s out of pocket expenses.”19 AID at 14. The
administrative judge therefore awarded the appellant an additional $1,866 for
expenses incurred from April 2014 throug h October 2017, and $1,500 for future
copays from November 2017 for a period of 3 years. Id.
¶24 On review, the agency argues , among other things, that the administrative
judge erred in her award because (1) the appellant lacked documentary
corroboration to support his claim of damages for psychological counseling,
(2) the administrative judge’s factual determinations, especially related to future
damages, were purely speculative, and (3) she did not consider the appellant’s
preexisting conditions . P-3 PFR File, Tab 1 at 7 -12. In pertinent part, the agency
argues that “[p]roceeding solely by dates of treatment after a certain time period,
without any evidence or inquiry as to the possible alleviation or termination of a
prior condition, is a factual error t hat would result in a different award of
19 The administrative judge stated that it was appropriate to measure the appellant’s
damages based on primary care visits from “April 2014, the close out of the OSC
complaint.” AID at 14. We clarify that OSC’s decisio n to close his complaint in
April 2014 has no bearing on the appellant’s entitlement to damages because he did not
file an IRA appeal.
16
pecuniary damages.” Id. at 9. The appellant does not respond substantively to
the agency’s arguments , but he “accepts” the administrative judge’s award of
damages in this regard . P-3 PFR File, Tab 3 at 15.
¶25 Here , too, we have concerns that the administrative judge has not
sufficiently linked the appellant’s claim for damages for medical expenses and
treatment to the removal action. Significantly , the administrative judge
consider ed the appellant’s conditions and agency actions that predated the
March 7, 2014 notice of proposed removal. For example, she noted that the
appellant’s medical needs before 2010 were “sporadic” but that he “ presented
himself to obtain medical care as a result of the impact of the agency ’s actions
towards him.” AID at 13. She noted that the appellant reported that it was
“particularly devastat ing” that the agency placed him on administrative duties
instead of restoring him to his management role after the first notice of proposed
remova l was not sustained. Id. It is also problematic that the administrative
judge seems to have automatically credit ed most of the appellant’s medical
appointments that postdated the March 7, 2014 notice of proposed removal
because the chronology is not nece ssarily dispositive. Indeed, the appellant’s
entitlement to damages related to the removal is complicated , in part, because of
the protracted litigation between the parties and the fact that the appellant may
have suffered from medical conditions due to various agency actions that
predated the March 7, 2014 notice of proposed removal.
¶26 Ultimately, we find that the administrative judge’s analysis does not clearly
and sufficiently link the appellant’s entitlement to damages for medical expenses
and treatment (past and future) to the 2014 removal action. See Hollingsworth v .
Department of Commerce , 117 M.S.P.R. 327, ¶ 11 (2012) ( finding that —even
accepting the assertions of the appellant , her family friends, and clergy that her
medical conditions worsened after the agency removed her —that alone did not
establish a causal connection between the agency’s acts and the worsen ing of the
appellant’s conditions); see generally EEOC Guidance , 1992 WL 1364354 , at *4
17
(“To recover damages [for pecuniary losses], the complaining party must prove
that the employer’s discriminatory act or conduct was the cause of his loss.”).
Moreover , the administrative judge did not discuss 5 U.S.C. § 1221 (g)(4) or its
applicability to the appellant’s claim of reimbursement of medical expenses and
treatment , and the parties were not given an o pportunity to brief this issue .
Accordingly, we vacate the administrative judge’s analysis of the appellant’s
entitlement to reimbursement of medical expenses and treatment , and we remand
this claim so that the parties can brief the issues relating to 5 U.S.C. § 1221 (g)(4)
and any other issues deemed appropriate by the administrative judge in this
regard. The administrative judge should reevaluate the appellant’s claim of
entitlement to medical ex penses and treatment both in relation to the removal
action, per 5 U.S.C. § 1221 (g)(1)(A)(ii) and , if applicable, 5 U.S.C. § 1221 (g)(4) ,
and issue a new addendum initial decision that explains her findings.20
20 On remand, the administrative judge should review and, if necessary, correct some of
her calculations. For example, the agency contests the award of $1,866 for medical
expenses incurred with the appellant’s primary care physician. P -3 PFR File, Tab 1
at 9; AID at 14. We agree that the amount awarded does not appear to match the
administrative judge’s explanation of ho w she derived that amount and the cited record
evidence. AID at 14; P -1 AF, Tab 18 at 64. Without further explanation from the
administrative judge, we cannot assess the merits of the agency’s other arguments
regarding this expense. On remand, the admin istrative judge should make new findings
regarding the medical expenses claimed related to the primary care physician and
explain her rationale. Additionally, for future psychiatric care copays for 3 years at
$25.00 per month, the total would appear to be $900, not $960. AID at 13.
18
ORDER
¶27 For the reasons discussed above, we remand this case to the Western
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 | GUZMAN_JORGE_M_SF_0752_15_0170_P_3_REMAND_ORDER_1990958.pdf | 2023-01-06 | null | S | NP |
3,836 | https://www.mspb.gov/decisions/nonprecedential/COBIA_YOLANDA_D_PH_0752_16_0283_X_1_FINAL_ORDER_1990978.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
YOLANDA D. COBIA,
Appellant ,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency .
DOCKET NUMBER
PH-0752 -16-0283 -X-1
DATE : January 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Yolanda D. Cob ia, New Castle, Delaware, pro se.
Stephen M. Pahides , Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 This compliance proceeding was initiated by the appellant’s petition for
enforcement of the Board’s September 30, 2016 decision in Cobia v. Department
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
of Veterans Affairs , MSPB Docket No. PH -0752 -16-0283 -I-1, in which the
administrative judge accept ed the parties’ settlement agreement into the record
for enforcement purposes. Cobia v. Department of Veterans Affairs , MSPB
Docket No. PH -0752 -16-0283 -I-1, Initial Appeal File (IAF), Tab 28, Initial
Decision (ID). On August 14, 2017, the administrative judge issued a compliance
initial decision finding the agency not in compliance with the Board’s
September 30, 2016 decision . Cobia v. Department of Veterans Affairs , MSPB
Docket No. PH -0752 -16-0283 -C-1, Compliance File (CF), Tab 17, Compliance
Initial De cision (CID). For the reasons discussed below, we find the agency in
compliance and DISMISS the petition for enforcement.
DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE
¶2 On April 25, 2016, the appellant filed an individual right of action (IRA)
appea l alleging that her March 9, 2016 removal from the position of Voucher
Examiner constituted reprisal for her whistleblower disclosures. IAF, Tab 1 at 2.
On September 30, 2016, the administrative judge, pursuant to a settlement
between the parties, issued an initial decision that dismissed the appeal as settled
and accepted the settlement agreement into the record for enforcement purposes.
ID at 1 -2. In relevant part, the settlement agreement called for the agency to:
(1) purge from appellant’s electron ic Official Personnel File (eOPF) all
references to her March 29, 2016 removal; and (2) retroactively restore her
employment for the period of March 29 through July 23, 2016, along with
providing her all pay, leave, and other benefits for that period of ti me. IAF,
Tab 27 at 5 -6. The initial decision became the final decision of the Board on
November 4, 2016, when neither party petitioned for administrative review. ID
at 3.
¶3 On November 15 and December 9, 2016, the appellant filed two petitions
for enfor cement of the settlement agreement (in the same proceeding). CF,
Tabs 1, 4. In her petitions, the appellant alleged that the agency had not yet
3
purged all referenc es to her removal from her eOPF and had not yet retroactively
restored her employment and b enefits. CF, Tab 1 at 4 -7, Tab 4 at 4 -6. On
August 14, 2017, the administrative judge found the agency not in compliance
with the settlement agreement. CID at 1 -8. The administrative judge found that
the agency had failed to issue a corrected Standard Form 50 (SF-50) or to restore
the appellant’s benefits for the relevant time period. CID at 6. The
administrative judge ordered the agency to “issue a corrected SF -50 and restore
the appellant’s benefits for the relevant time period” within 30 days of th e date of
the compliance initial decision. CID at 8.
¶4 On September 18, 2017, in response to the compliance initial decision, the
agency submitted the declaration of an agency Human Resources Specialist, along
with supporting documentation. Cobia v. Depa rtment of Veterans Affairs , MSPB
Docket No. PH -0752 -16-0283 -X-1, Compliance Referral File ( CRF ), Tabs 1 -3.
The declaration and supporting documentation reflected that the agency had
issued an SF -50 showing that the appellant resigned from her Voucher Exam iner
position effective July 23, 2016, and that the agency uploaded this SF -50 into the
appellant’s eOPF. CRF, Tab 1 at 4, Tab 2 at 4. The declaration also generally
referenced the appellant’s back pay for the period of March 29 through July 23,
2016, an d a “spreadsheet filed in the MSPB e -appeal system” pertaining to such
back pay. CRF, Tab 1 at 4. However, it was unclear from the agency’s
spreadsheets how the agency calculated the amount of back pay due to the
appellant, the total amount of gross or n et back pay that the agency determined
was due to the appellant, and whether the agency actually provided the appellant
with any back pay. CRF, Tab 3. Additionally, although the declaration generally
referenced annual leave, sick leave, and Thrift Saving s Plan (TSP) contributions
due to be restored to the appellant, the agency did not articulate the total amounts
of annual leave, sick leave, and TSP contributions due to the appellant under the
settlement agreement, did not set forth its methodology for ca lculating those
amounts, and did not state whether it actually provided the leave and TSP
4
contributions to the appellant. CRF, Tab 1 at 5. Finally, the declaration asserted
that the agency had submitted a “Remedy Ticket” to the Defense Finance and
Accoun ting Service (DFAS) inquiring why deductions for Federal Employees
Health Benefits (FEHB) and Federal Employees Group Life Insurance (FEGLI)
premiums were not taken from an unspecified “settlement amount” provided to
the appellant and that the agency was a waiting a response from the DFAS. Id.
at 5-6.
¶5 On January 18, 2018, the Clerk of the Board issued an order explaining that
the agency’s response was insufficient to determine whether the agency was in
compliance with the settlement agreement. CRF, Tab 5 at 4. The Clerk of the
Board directed the agency to submit detailed narrative explanations setting for th
how the agency calculated the appellant’s back pay and benefits. Id. at 4-6. The
order specified that the detailed narrative explanations should include information
regarding: (1) the total amount of gross and net back pay, annual and sick leave,
and TSP contributions due to the appellant; (2) the total amount of any FEHB or
FEGLI premiums that should have been deducted from payments due to the
appellant under the settlement agreement; and (3) whether either the agency or
the DFAS intended to seek to recover any overpayment to the appellant as a result
of the failure to deduct the FEHB or FEGLI premiums from payments due to the
appellant under the settlement agreement. Id. Finally, the order directed the
agency to submit evidence that it had actually provided the appellant with the
back pay and benefits referenced in the detailed narrative explanations and
supporting documentation. Id. at 4-5.
¶6 On February 22, 2018, the agency submitted a response to the Clerk of the
Board’s January 18, 2018 Order. CRF, Tab 8. The agency did not submit the
detailed narrative explanations required by the order but, instead, referenced the
previously submitted de claration and asserted that “a more detailed explanation is
not possible unless produced by the original custodian of this information, namely
the [DFAS].” Id. at 5. The agency also submitted several documents with its
5
response, which it contended pertai ned to “new information” that was “recently
obtained from [the] DFAS.” Id. (emphasis omitted) . The agency submitted an
attachment that it contended “show[ed] hours paid, PLUS each Leave and Earning
statement for each pay period in question, showing all d eductions and benefits
paid by the [G]overnment to the Appellant.” Id. However, the attachment did not
include any leave and earnings statements. Id. at 8-13. Instead, it consisted of a
spreadsheet pertaining to the appellant’s pay for various pay peri ods, which did
not contain any entries for the majority of the relevant time period from March 29
through July 23, 2016.2 Id. at 8-13. The spreadsheet appeared identical to the
spreadsheet that the agency submitted in response to the compliance initial
decision on September 18, 2017. Compare CRF, Tab 3 at 4 -9, with CRF, Tab 8
at 8-13. Further, the total amount of gross and net pay due to the appellant under
the settlement agreement was not clear, and the agency did not set forth its
methodology for calc ulating those amounts. CRF, Tab 8 at 8 -13.
¶7 The agency also submitted a spreadsheet pertaining to the appellant’s 2016
leave balances, which appeared to reflect that the appellant accrued 6 hours of
annual leave and 4 hours of sick leave during the relevan t time period from March
29 through July 23, 2016. CRF, Tab 8 at 14. This spreadsheet again appeared
identical to a spreadsheet that the agency previously submitted during
enforcement proceedings before the administrative judge. Compare CF, Tab 15
at 11 , with CRF, Tab 8 at 14. The spreadsheet did not, however, indicate how the
agency calculated the annual or sick leave due to be restored to the appellant or
the total amount of annual and sick leave that the agency restored to the
appellant.3 CRF, Tab 8 at 14. Finally, the agency’s response to the Clerk of the
2 Most of the entries on the spreadsheet appeared to pertain to the appellant’s pay for
pay periods after July 23, 2016, which is irrelevant because it post -dates the back pay
period. CRF, Tab 8 at 8-13.
3 In a plea ding submitted in response to the Clerk of the Board’s January 18, 2018
Order, counsel for the agency represented that when the agency restored an unspecified
6
Board’s January 18, 2018 Order did not address the appellant’s TSP
contributions, employer retirement contributions, or FEHB and FEGLI premiums.
CRF, Tab 8.
¶8 In a March 15, 2018 reply to the age ncy’s response, the appellant argued
that the agency did not comply with the Clerk of the Board’s January 18, 2018
Order and that the agency was also not in compliance with the settlement
agreement. CRF, Tab 9 at 4 -8. The appellant submitted a declaratio n under
penalty of perjury, in which she asserted that she had received direct deposits
from the agency, which she assumed were back pay, but that she did not know
how the back pay was calculated or whether the agency had provided her with the
correct amou nt of back pay. Id. at 10. The appellant also represented that she
had “hours randomly added” to her pay stubs, which she assumed were restored
leave, but that she did not know how the leave was calculated or whether the
agency had provided her with the correct amount of leave. Id. In addition, the
appellant asserted that, based on her review of her TSP statements, the agency did
not restore her TSP benefits. Id. Finally, the appellant represented that, on
February 23, 2018, she contacted her health i nsurance company and was informed
that her coverage was terminated from April 2 through November 12, 2016, and
that she was reenrolled from November 13, 2016 , onwards, but not retroactively.
Id.
¶9 On May 30, 2018, the Clerk of the Board issued an order ex plaining that the
agency’s responses were still insufficient to determine whether the agency was in
compliance with the settlement agreement. CRF, Tab 10 at 6. The Clerk of the
Board again directed the agency to submit detailed narrative explanations of the
amount of annual leave to the appellant on an unspecified date, 40.75 hours of the
appellant’s an nual leave was forfeited because she exceeded the 240 hour annual
carry -over maximum. CRF, Tab 8 at 5. The agency submitted an attachment that
appeared to reflect that the 40.75 hours of forfeited leave was restored to the appellant
on May 28, 2017. Id. at 15-16.
7
appellant’s back pay and benefits. Id. at 6-7. The Clerk of the Board further
directed the agency to submit narrative explanations addressing: (1) whether the
agency afforded the appellant an opportunity to elect retroactive reinstatement of
her hea lth insurance benefits for the period from March 29 through July 23, 2016,
and if so, whether the appellant elected retroactive reinstatement of her health
insurance benefits for this time period; (2) if the appellant elected retroactive
reinstatement of h er health insurance benefits for the period from March 29
through July 23, 2016, the steps that the agency had taken to reinstate the
appellant’s health insurance benefits for this time period, and whether those steps
resulted in reinstatement of the appel lant’s health insurance benefits; (3) whether
the agency was obligated to afford the appellant the opportunity to elect
retroactive reinstatement of her health insurance benefits for the period from July
24 through November 12, 2016, and if so, why; (4) if the agency was obligated to
afford the appellant the opportunity to elect retroactive reinstatement of her
health insurance benefits for the period from July 24 through November 12, 2016,
whether the appellant elected retroactive reinstatement of her heal th insurance
benefits for this time period; and (5) if the appellant elected retroactive
reinstatement of her health insurance benefits for the period from July 24 through
November 12, 2016, the steps that the agency took to reinstate the appellant’s
healt h insurance benefits for that time period and whether those steps resulted in
reinstatement of the appellant’s health insurance benefits. Id. The Clerk of the
Board also stated that, if the agency’s responsive submission did not address each
of the aforementioned issues, the agency was required to submit biweekly status
reports detailing its efforts to reach compliance and progress in doing so . Id. at 7.
The Clerk of the Board stated that, to the extent the agency contended it needed
to obtain information from the DFAS in order to respond, it must provide details
of its efforts to obtain that information from the DFAS. Id. at 7-8.
¶10 On June 14 , 2018, the agency submitted its first biweekly status report,
pursuant to the May 30, 2018 Order. CRF, Tab 11 at 1. In its report, the agency
8
stated that it had assigned a subject matter expert (SME) to review the matter on
behalf of the agency. Id.
¶11 On June 21, 2018, the Clerk of the Board issued an order acknowledging the
agency’s first biweekly status report. CRF, Tab 12 at 1 -2. The Clerk of the
Board noted that the agency’s report did not provide any information describing
the agency’s efforts to ward obtaining the required detailed narrative explanations
and supporting documentation prior to retaining the SME and did not address any
efforts by the agency towards obtaining evidence and information from the DFAS
prior , or in addition , to retaining t he SME . Id. The Clerk of the Board ordered
the agency to continue to comply with the May 30, 2018 Order, and to submit
either the detailed narrative explanations and supporting documentation required
by the order or biweekly status reports detailing the agency’s progress and efforts
to do so. Id. at 2. In the event the agency chose to file another biweekly status
report, the Clerk of the Board further ordered the agency to address in the report:
(1) the date that the agency anticipated that the SME Man agement Analyst would
complete the audit referenced in the June 14, 2018 biweekly status report; (2) the
agency’s efforts towards obtaining the required detailed narrative explanations
and supporting documentation prior to retaining the SME Management Anal yst;
and (3) the agency’s efforts towards obtaining evidence and information from the
DFAS prior to retaining the SME Management Analyst. Id.
¶12 On June 28, 2018, the agency submitted its second biweekly status report.
CRF, Tab 13. In the status report, the agency provided additional details
regarding its attempts to reach compliance, including details of its efforts to
obtain necessary information from the DFAS.4 Id. at 4-6. The agency stated in
4 In the report, the agency asserted that disclosure of the name of the individual
completing an audit of its compliance attempt was protected by the deliberative process
privilege. CRF, Tab 13 at 4. Because we find the agency to be in complia nce, we do
not address the agency’s co ntention regarding privilege.
9
the report that it anticipated its audit of its complianc e efforts could take as long
as 10 weeks. Id. at 5.
¶13 Between July 12 and December 14, 2018, the agency submitted multiple
biweekly status reports in which it only stated it had “nothing significant to
report” regarding its attempts to reach compliance. CRF, Tabs 14 -25. On
April 12, 2019, the agency submitted its 15 th status report, indicating that it had
been engaged in mediation with the appellant regarding its compliance issues.
CRF, Tab 26 at 4.
¶14 On May 8, 2019, the agency submitted its 16 th biweek ly status report.
CRF, Tab 27. In the report, the agency reported that its audit revealed a
discrepancy of 40.75 annual leave hours for the appellant and provided details
regarding the origin of the discrepancy. Id. at 4-5. The agency indicated that it
spoke with the appellant’s representative about the discrepancy and that the
appellant’s representative indicated the appellant wanted those annual leave hours
added to her current leave record. Id. at 5.
¶15 On July 16, 2019, the agency submitted its 17 th status report. CRF, Tab 28.
In the report, the agency provided additional narrative details of its compliance
audit received from the DFAS. Id. at 4-5. The agency explained that the errors in
the appellant’s benefits arose out of coding errors and that those coding errors
were corrected upon discovery of the errors. Id. The agency further explained
that, due to the coding errors, the appellant was not able to contribute to her TSP
account. Id. at 5. The agency stated that an inquiry was made to the appellant as
to whether she desired to make up her missed TSP contributions, but the appellant
did not respond to the inquiry, so no TSP contribut ions were withheld for her. Id.
Finally, the agency stated that, because the appellant expressed a desire to make
up her missed FEHB payments, a debt for the missed contributions was created,
and a debt letter was mailed to the appellant. Id.
¶16 On March 1 3, 2020, the agency submitted its 18 th status report. CRF,
Tab 29. This report contained a full narrative description of the appellant’s back
10
pay and benefits received pursuant to the settlement. Id. at 4-7. The report
detailed the amount of funds rece ived by appellant for the back pay period
pursuant to the settlement agreement and further explained the deductions taken
from the funds. Id. at 5-6. The report also explained the results of the agency’s
compliance audit and detailed how the agency corre cted the errors from its prior
attempts to reach compliance, including the previously mentioned restoration of
40.75 annual leave hours and the creation of a debt to account for the missed
FEHB payments. Id. at 6-7.
¶17 On March 25, 2021, the appellant respon ded to the agency’s last status
report. CRF, Tab 30. The appellant indicated in her response that she agreed
with the agency’s assertion that it had finally fully complied with its requirements
under the settlement agreement. Id. at 4.
ANALYSIS
¶18 A settle ment agreement is a contract and, as such, will be enforced in
accordance with contract law. Burke v. Department of Veterans Affairs ,
121 M.S.P.R. 299 , ¶ 8 (2014). The Board will enforce a settlement agreement
that has been entered into the record in the same manner as a final Board decision
or order. Id. When the appellant alleges noncompliance with a settlement
agreement, the agen cy must produce relevant material evidence of its compliance
with the agreement or show that there was good cause for noncompliance. Id.
The ultimate burden, however, remains with the appellant to prove breach by a
preponderance of the evidence. Id.
¶19 The agency’s outstanding compliance issues were its obligations to:
(1) purge from appellant’s eOPF all references to her March 29, 2016 removal;
and (2) retroactively restore her employment and benefits for the period of
March 29, 2016, through July 23, 201 6. CID at 6 -7. The agency’s multiple
submissions demonstrate that it has now met all of its obligations. The
September 18, 2017 submission established that the agency finally issued a
11
corrected SF -50, which accurately reflected the appellant’s resignati on date.
CRF, Tab 1 at 4, Tab 2 at 4. The same September 18, 2017 submission indicated
that the agency also provided the appellant with the requisite back pay for the
relevant time period. Id. And while that submission lacked the necessary details
and narrative explanation of the retroactive back pay and benefits, the agency
sufficiently explained the details of the back pay and benefits and its corrections
to its original errors regarding the back pay and benefits in its 16 th, 17th, and
18th status reports. CRF, Tabs 27 -29. Moreover, the appellant’s March 25, 2021
submission indicates that she agrees that the agency has met all of its outstanding
compliance obligations. CRF, Tab 30 at 4.
¶20 Accordingly, in light of the agency’s evidence of co mpliance and the
appellant’s statements of satisfaction, the Board finds the agency in compliance
and dismisses the petition for enforcement. This is the final decision of the Merit
Systems Protection Board in this compliance proceeding. Title 5 of the C ode of
Federal Regulations, section 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)).
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
12
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statu te, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of availa ble appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may res ult in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the 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 cann ot advise which option is most appropriate in any matter.
13
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposi tion of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017) . If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
14
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.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
15
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.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
16
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | COBIA_YOLANDA_D_PH_0752_16_0283_X_1_FINAL_ORDER_1990978.pdf | 2023-01-06 | null | PH | NP |
3,837 | https://www.mspb.gov/decisions/nonprecedential/MCCARDLE_TREVOR_SF_0752_15_0496_I_1_FINAL_ORDER_1990984.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TREVOR MCCARDLE,1
Appellant,
v.
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSI ON,
Agency.
DOCKET NUMBER
SF-0752 -15-0496 -I-1
DATE: January 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL2
Cori M. Cohen , Esquire, Stephanie M. Herrera , Esquire and Holly V.
Franson , Esquire, Silver Spring, Maryland, for the appellant.
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Leroy T. Jenkins, Jr. , Washington, D.C., for the agency.
1 The Board took official notice that Mr. McCardle died on August 4, 2019, while the
petition for review and cross petition for review were pending, and it issued a show
cause order that invited the parties to file a motion fo r substitution. Petition for Review
File, Tab 26. No motion for substitution was filed in this matter . Nevertheless, because
the substantive issues were fully briefed before the appellant passed away, and we
dismiss the appeal as moot, we need not take any further action pursuant to 5 C.F.R.
§ 1201.35 .
2 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties ma y cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The agency has filed a petition for review and the appellant has filed a cross
petition for review of an initial decision that reversed the agency’s continuation
of the indefinite suspension and found that the appellant did not prove his
affirmative defenses of a Fourth Amendment violation and reprisal for
whistleblowing and equal employment opportunity (EEO) activity. Generally, we
grant petitions such as these on ly in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; t he administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ).
¶2 After fully considering the filings in this appeal, we conclude that neither
party has established any basis under section 1201.115 for granting the petition or
cross petition for review. Therefore, we DENY the petition for re view and the
cross petition for review. We AFFIRM the administrative judge’s conclusion
that the agency should have terminated the suspension after it received the
May 21, 2015 fitness -for-duty report. We AFFIRM as MODIFIED the
administrative judge’s fin ding that the appellant did not prove his affirmative
defenses of reprisal for whistleblowing and EEO activity. We further MODIFY
3
the initial decision to discuss the agency’s contention regarding the appellant’s
subsequent U.S. district court complaint an d to supplement the administrative
judge’s analysis of the reprisal claims, but we find that a different outcome is not
warranted. We FIND that any relief that the appellant could receive in this matter
would be duplicative of the relief previously ordere d by the Board in its final
order resolving the prior appeal concerning the imposition of this indefinite
suspension. Because the appellant is not entitled to any additional relief, we
VACATE the administrative judge’s duplicative order to reverse the con tinuation
of this already canceled suspension, and we DISMISS this appeal as MOOT.
Except as expressly MODIFIED by this Final Order, we AFFIRM the findings in
the initial decision.
BACKGROUND
¶3 The agency indefinitely suspended the appellant, effective December 28,
2014, because of its concern that he was not fit for duty as a Paralegal Specialist,
and he filed an appeal regarding the imposition of the suspension, McCardle v.
Equal Employment Opportunity Commission , MSPB Docket No. SF -0752 -15-
0230 -I-1. While that appeal was pending, the appellant initiated this separate
appeal on April 20, 2015, concerning the improper continuation of that
suspension after the agency received, among other things, a second letter from his
treating psychiatrist, which stat ed that the appellant did not pose a threat to
himself or others.3 McCardle v. Equal Employment Opportunity Commission ,
MSPB Docket No. SF -0752 -15-0496 -I-1, Initial Appeal File (IAF), Tab 1. The
Board issued a final order regarding the imposition of the indefinite suspension,
which ordered the agency to rescind the appellant’s suspension and to pay him the
correct amount of back pay, interest on back pay, and other benefits. McCardle v.
3 Our reviewing court has held that the imposition of an indefinite suspe nsion and the
failure to terminate that suspension after satisfaction of the condition subsequent are
separately reviewable actions. Rhodes v. Merit Systems Protection Board , 487 F.3d
1377 , 1381 (Fed. Cir. 2007).
4
Equal Employment Opportunity Commission , MSPB Docket No. SF -0752 -15-
0230 -I-1, Final Order, ¶¶ 11, 40-41 (Jan. 6, 2023). The Board also modified the
initial decision to supplement the administrative judge’s analysis of the
appellant’s affirmative defenses of reprisal for whistleblowing and EEO activity,
still concluding that the appellant did not prove either of these repr isal claims.
Id., ¶¶ 12 -34.
¶4 The appellant withdrew his hearing request in this matter. IAF, Tabs 38,
42.4 The administrative judge issued an initial decision finding, in pertinent part,
that, even if the agency’s imposition of the indefinite suspension was valid, the
agency was required to terminate the suspension when it received a May 21, 2015
fitness -for-duty (FFD) narrative report because it satisfied the condition
subsequent set forth in the proposal notice. IAF, Tab 50, Initial Decision (ID)
at 8-9; IAF, Tab 7 at 48 -49, Tab 15 at 19 -30. The administrative judge
alternatively found that the action could not be sustained on due process grounds.
ID at 9. The administrative judge further found that the appellant did not prove
his affirmative defense s of a Fourth Amendment violation and reprisal. ID
at 10-18.5 The administrative judge also issued the same order as he did in the
initial decision in the appeal involving the imposition of the indefinite
suspension, which canceled the underlying suspens ion and directed the agency to
4 The agency subsequently removed the appellant and, after he appealed, the
administrative judge sustained the agency’s action. McCardle v. Equal Employment
Opportunity Commission , MSP B Docket No. SF -0752 -16-0689 -I-3. The appellant also
filed an individual right of action appeal in which the administrative judge denied his
request for corrective action. McCardle v. Equal Employment Opportunity Commission ,
MSPB Docket No. SF -1221 -17-0270-W-2. The appellant petitioned for review of both
of those initial decisions. The Board issued an init ial decision in MSPB Docket
No. SF-0752 -16-0689 -I-3 on December 7, 20 22, and will issue a separate decision in
MSPB Docket No. SF -1221 -17-0270 -W-2.
5 The appellant’s claim of a Fourth Amendment violation involved the search of his
office and discovery of the box cutter in his backpack. ID at 17 -18. The appellant does
not challenge the administrative judge’s conclusion that he did not prove this cla im, and
we affirm it herein.
5
restore the appellant, effective December 28, 2014, and pay him back pay and
associated benefits. ID at 18.
¶5 The agency has filed a petition for review, the appellant has filed a
response, and the agency has filed a reply brief. Petition for Review (PFR) File,
Tabs 1, 3, 10. The appellant has filed a cross petition for review, the agency has
filed a response, and, with the Board’s permission, the appellant has filed a reply
brief. PFR File, Tabs 8, 12, 15, 18, 20, 22.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 In its petition for review, the agency argues that the administrative judge
made the following mistakes: (1) he erred when he found that the agency should
have terminated the indefinite suspension after receiving the FFD report; (2) he
failed to address the preclusive effect of the appellant’s subsequent U.S. district
court matter; and (3) he erred when he found that the agency violated the
appellant’s due process rights. PFR File, Tab 1 at 4 -6, 18 -20, 23 -30.6 In his
cross petition for review, the appellant asserts that the administrative judge
wrongly decided his reprisal affirmative defenses and failed to address his
disability discrimination claim. PFR File, Tab 12 at 4 -5, 14 -33.
We affirm the administrative judge’s finding that the agency improperly
continued the indefinite suspension beyond its receipt of the May 21, 2015 FFD
report.
¶7 The U.S. Court of Appeals for the Federal Circuit has held that the Board’s
role in an appeal alleging an impermissible continuation of an indefinite
suspension is limited to reviewing whether the condition subsequent identified by
the agency occurred and whether the agency acted within a reasonable amount of
time to terminate the suspension following the satisfaction of the condition
6 To the extent that the administrative judge made findings in the initial decision
regarding the propriety of the imposition of the indefinite suspension, and the agency
challenges those findings on review, we have addressed t his issue in our final order in
the 0230 appeal, and we need not discuss it herein.
6
subsequent. Rhodes v. Merit Systems Protection Board , 487 F.3d 1377 , 1380 -81
(Fed. Cir. 2007). For the reasons described in the initial decisio n, we agree with
the administrative judge that, even if the indefinite suspension was valid when
imposed, the agency was required to terminate the suspension once it received the
detailed FFD narrative report because the appellant satisfied the condition
subsequent identified in the proposal notice. ID at 2 -9. Indeed, the deciding
official, who was also the agency official responsible for determining if and when
the appellant could return to work, conceded in her deposition that the doctor who
wrote the F FD report performed psychological testing, answered all of the
questions that the agency proffered in its medical questionnaire, and concluded
that the appellant was not a threat to himself or others. IAF, Tab 45 at 501,
519-21 (deposition testimony of th e deciding official).
¶8 In its petition for review, the agency asserts that it was justified in
continuing the suspension beyond its receipt of the FFD report because it
“discovered” during this period that the appellant had “engaged in repeated and
seriou s misconduct,” which ultimately led to his removal. PFR File, Tab 1
at 23-24 & n.23. Any new information obtained by the agency during this period
may have justified additional action against the appellant, but it does not justify
the agency’s refusal to terminate the indefinite suspension upon satisfaction of
the condition subsequent.7
The appellant did not prove his affirmative defense of reprisal for whistleblowing
disclosures or other protected activity under 5 U.S.C. § 2302 (b)(8) -(9).
¶9 Under the Whistleblower Protection Enhancement Act of 2012 (WPEA), an
appellant asserting an affirmative defense of reprisal for whistleblowing or other
7 Because we affirm the administrative judge’s finding that the agency improperly
continued the indefinite suspension after its receipt of the FFD report, we need not
address the agency’s due process arguments on review.
7
protected activity must show, by preponderant evidence,8 that he made a protected
disclosure pursuant to 5 U.S.C. § 2302 (b)(8) or engaged in protected activity as
defined in 5 U.S.C. § 2302 (b)(9) (A)(i), (B), (C), and (D)9 and the disclosure or
protected activity was a contributing factor in the personnel action(s). Ayers v.
Department of the Army , 123 M.S.P.R. 11, ¶ 12 (2015); Alarid v. Department of
the Army , 122 M.S.P.R. 600, ¶ 12 (2015); see 5 U.S.C. § 1221 (e)(1). If the
appellant establishes a prima facie case of such reprisal, then the burden of
persuasion shifts to the agency to show by clear and convincing evidence that it
would have t aken the same personnel action(s) absent any whistleblowing
disclosure or protected activity. Ayers , 123 M.S.P.R. 11, ¶ 12; Alarid ,
122 M.S.P.R. 600, ¶ 12; see 5 U.S.C. § 1221 (e)(2).
¶10 As he did in the appeal involving the imposition of the indefinite
suspension, the appellant asserted below that his September 19, 2014 email,
entitled “Help Needed –EEOC Los Angeles Legal Unit Under Poor Management,”
contained protected disclosures. IAF, Tab 45 at 19-22. The administrative judge
determined that the email was related to his EEO matters, was covered by
5 U.S.C. § 2302 (b)(1) and (b)(9), and therefore was excluded from coverage
under 5 U.S.C. § 2302 (b)(8). ID at 10 -12. The administrative judge should have
considered whether the appellant established reprisal for protected activity under
5 U.S.C. § 2302 (b)(9)(A)(i), which prohibits reprisal for the exercise of any
appeal, complaint, or grievance right granted by any law, rule, or regulation
regarding remedying a violation of 5 U.S.C. § 2302 (b)(8). 5 U.S.C. § 1221 (a),
(e); see Colbert v. Department of Veterans Affairs , 121 M.S.P.R. 677, ¶ 7
8 Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
9 Subsections 2302(b)(9)(B), (C), and (D) are not implicated by the facts of this appeal .
8
(2014).10 Because the administrative judge did not discuss the potential
applicability of the WPEA, and section 2302(b)(9)(A)(i) in particular, we modify
the initial decision to supplement his analysis of thi s claim.
¶11 We incorporate by reference our analysis and conclusion in the 0230 final
order that the appellant’s September 19, 2014 email contained a disclosure of
information that he reasonably believed evidenced a violation of any law, rule, or
regulati on, and was protected by 5 U.S.C. § 2302 (b)(8), but it did not constitute
activity protected by section 2302(b)(9)(A)(i). We further find that the appellant
demonstrated that his disclosure was a contributing factor in the agency’s
decision to continue the indefinite suspension because the email was sent to the
entire agency and the agency did not terminate the suspension after it received the
FFD report or at any time prior to the October 16, 2015 removal. See Inman v.
Department of Veterans Affairs , 112 M.S.P.R. 280, ¶ 12 (2009) (holding that
12-15 months can satisfy the tim ing element of the knowledge/timing test for
showing that a disclosure was a contributing factor in a personnel action).
Having found that the appellant satisfied his prima facie burden, we must now
evaluate whether the agency proved by clear and convinci ng evidence11 that it
would have continued the suspension after it received the FFD report in the
absence of the September 19, 2014 email.
¶12 We have considered the strength of the agency’s evidence in support of its
action, the existence and strength of any motive to retaliate on the part of the
agency officials who were involved in the decision, and any evidence that the
agency takes similar a ctions against employees who are not whistleblowers or
10 Although the appellant did not explicitly assert below that this email constituted
protected activity pursuant to 5 U.S.C. § 2302 (b)(9)(A)(i), we agree that he alleged
sufficient facts below to warrant consideratio n of such a claim under
section “2302(b)(9 )(A).” PFR File, Tab 12 at 28 n.10.
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 sought to be esta blished.”
5 C.F.R. § 1209.4 (e).
9
who did not engage in protected activity but who are otherwise similarly situated.
Carr v. Social Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999);
Alarid , 122 M.S.P.R. 600, ¶ 14. Consistent with the Fed eral Circuit’s guidance,
we have considered all of the pertinent evidence. Whitmore v. Department of
Labor , 680 F.3d 1353 , 1358 (Fed. Cir. 2012 ). For the following reasons, we find
that the Carr factors weigh in the appellant’s favor.
¶13 Because the deciding official essentially conceded that the FFD report
satisfied the condition subsequent set forth in the proposal notice, and we have
affirmed th e administrative judge’s conclusion that the condition subsequent for
terminating the suspension was satisfied after the agency received the FFD report,
supra ¶ 7, we find that the agency’s evidence in support of its action is weak.
Concerning the existen ce and the strength of the agency’s motive to retaliate, the
September 19, 2014 email identified and criticized various agency officials,
including the official who proposed to indefinite suspend the appellant. See, e.g.,
Whitmore , 680 F.3d at 1370 (“Thos e responsible for the agency’s performance
overall may well be motivated to retaliate even if they are not directly implicated
by the disclosures, and even if they do not know the whistleblower personally, as
the criticism reflects on them in their capacit ies as managers and employees.”).
Finally, the parties acknowledge that the agency did not proffer any evidence
regarding the third Carr factor. PFR File, Tab 12 at 33, Tab 15 at 32. To the
extent evidence on Carr factor 3 exists, the agency is required to come forward
with all reasonably pertinent evidence; the failure to do so may be at the agency’s
peril. Whitmore , 680 F.3d at 1374. Absent relevant comparator evidence, Carr
factor 3 cannot weigh in favor of the Government. Siler v. Environmental
Protection Agency , 908 F.3d 1291 , 1299 (Fed. Cir. 2018). We find, therefore,
that Carr factor 3 weighs against the agency.
¶14 Our examination of th e Carr factors, however, does not provide adequate
context for understanding the agency’s decision to continue the suspension
beyond its receipt of the FFD report. The court has held that Carr factors are
10
“nonexclusive,” Smith v. General Services Administ ration , 930 F.3d 1359 , 1365
(Fed. Cir. 2019), and, therefore, we have considered the totality of the
circumstances in this matter. We find that the agency proved by clear and
convincing evidence that it would have continued the indefinite suspension after
it received the FFD report. The deciding official testified during her deposition
that after she received the FFD report, she learned that the agency had initiated an
investigation into serious allegations of misconduct against the appellant, which
ultimately led to his removal. IAF, Tab 45 at 527 -31, 553 -59 (deposition
testimony of the deciding official). She stated that the investigation inv olved
allegations that the appellant maintained a “journal” or “novel” on the agency
shared drive that discussed “vulgar” topics such as rape, sodomy, and violence
against children. Id. at 554 -56 (deposition testimony of the deciding official).
The decid ing official further testified that the agency was also investigating
whether the appellant misused Accurint, Lexus, and Westlaw, which the deciding
official characterized as “fraud.” Id. at 554, 558 -59 (deposition testimony of the
deciding official). Th e deciding official testified that she found it “disconcerting
that someone would put really negative or vulgar material . . . on a share[d] drive,
which would suggest [that someone] want[ed] other people to see it.” Id. at 555
(deposition testimony of th e deciding official). The deciding official testified
that she was waiting on the results of this investigation and a report from a
Federal Occupational Health psychiatrist before she made a decision regarding
the appellant’s return to work. Id. at 531 ( deposition testimony of the deciding
official). The deciding official explained that she continued the appellant’s
indefinite suspension after receiving the FFD report because she had “concerns
about his ability to work with people in the workplace” and s he was “not
comfortable returning him to work until [she felt] that he [was] not a risk.” Id.
at 544, 546 (deposition testimony of the deciding official). The serious nature of
the additional allegations against the appellant explains the agency’s concer n
about returning him to the workplace, notwithstanding the conclusions in the FFD
11
report. Under these circumstances, we are left with a firm belief that the agency
would have continued the suspension beyond its receipt of the FFD report absent
the appell ant’s September 19, 2014 email.12
¶15 For the first time on review, the appellant asserts that a January 2, 2014
email sent by an agency administrative judge to the Inspector General “on [his]
behalf” constituted “protected whistleblowing activity.” PFR File, Tab 1 at 13
n.3, 27. The appellant did not identify this correspondence as part of his claim of
reprisal for whistleblowing in his prehearing submission or closing brief below,
IAF, Tabs 24, 45, and we could not independently find this correspondence in t he
record. 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 appellant has not
met this burden, and we will not further consider this argument on review.
The appellant did not prove his affirmative defense of reprisal for EEO activity.
¶16 The administrative judge determined that the appellant failed to present any
direct evidence to support his contention that his July 12, 2013 EEO complaint
was a motivating factor in the agency’s decision to continue the suspension, he
did not show a “convincing mosaic” of reprisal, and he did not provide
comparator evidence or other circumstantial evidence of pretext. ID at 12 -17
(discussing Savage v. Department of the Army , 122 M.S.P.R. 612, ¶¶ 36-37,
41-42, 48 -49, 51 (2015), overruled on other grounds by Pridgen v. Office of
Management & Budget , 2022 MSPB 31 , ¶ 25)); IAF, Tab 44 at 107 -08.
¶17 Since the initial decision was issued, the Board has clarified that Savage
does no t require administrative judges to separate direct from circumstantial
evidence or to require appellants to demonstrate a convincing mosaic to support a
12 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
12
retaliation claim; rather, the Board reiterated that the dispositive inquiry was
whether the appellant proved by preponderant evidence that the prior EEO
activity was a motivating factor in the contested personnel action. Gardner v.
Department of Veterans Affairs , 123 M.S.P.R. 647, ¶¶ 29-30 (2016), clarified by
Pridgen , 2022 MSPB 31 , ¶¶ 23-24. We modify th e initial decision to apply the
standard identified in Gardner and to supplement the administrative judge’s
analysis of this claim consistent with the following discussion.13
¶18 We find that the appellant has met his burden to show that his EEO
complaint was a motivating factor in the agency’s decision to continue the
suspension. Importantly, the deciding official testified in her deposition that she
was aware of his EEO complaint when she imposed the suspension, IAF, Tab 31
at 140 -41 (deposition testimony o f the deciding official), and she did not
terminate the suspension when she received the FFD report, approximately 5 -6
months later.
¶19 Turning to the next part of our analysis, Title VII of the Civil Rights Act of
1964, as amended, requires that such actions “shall be made free from any
discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e -16(a). As noted above, t he appellant may prove an affirmative defense
under this subsection by showing that prohibited discrimination or reprisal was a
motivating factor in the contested personnel action, meaning that discrimination
or reprisal played “any par t” in the agency’s action. Pridgen , 2022 MSPB 31 ,
¶ 21. In Pridgen , the Board clarified that an appellant who proves motivating
factor and nothing more may be entitled to injunctive or other “forward -looking
relief,” but to obtain the full measure of relief under the statute, including status
13 On review, the appellant appear s to challenge only the administrative judge’s analysis
of his claim of reprisal for EEO activity in the context of the agency’s decision to
“place him on indefinite suspension,” not regarding the continuation of the indefinite
suspension. PFR File, Tab 12 at 24. We assume that the appellant’s references to the
imposition of the indefinite suspension were typographical errors, and thus, he intended
to state that he proved that his EEO complaint was a motivating factor in the agency’s
decision to continue the indefinite suspension.
13
quo ante relief, compensator y damages, or other forms of relief related to the end
result employment decision, he must show that discrimination or reprisal was a
“but-for” cause of the action. Id., ¶¶ 20-22 (citing Babb v. Wilkie , 140 S. Ct.
1168 , 1171, 1177 -78 (2020)).
¶20 The U.S. Supreme Court has explained that “a but -for test directs us to
change one thing at a time and see if the outcome changes. If it does, we have
found a but -for cause.” Bostock v . Clayton County, Georgia , 140 S. Ct. 1731 ,
1739 (2020). Here, if we eliminate the agency’s consideration of the appellant’s
EEO complaint, it is apparent that the agency w ould have continued the indefinite
suspension because of, among other things, the pending investigation into
additional allegations of serious misconduct against the appellant, and the
concerns expressed by the deciding official regarding whether he posed a risk if
he was returned to the workplace.14 Because we find that the outcome would be
the same without considering his prior EEO complaint, we further conclude that
the appellant has failed to prove that his EEO complaint was a but -for cause of
the conti nuation of the indefinite suspension.
¶21 We further modify the initial decision to discuss the appellant’s contention
that his September 19, 2014 email, discussed above, also constituted protected
EEO activity. PFR File, Tab 12 at 24-26. The deciding offici al’s reference in the
decision letter to the September 19, 2014 email and the negative effect that it
caused in the workplace, IAF, Tab 7 at 22, satisfies the appellant’s burden to
show that the email was a motivating factor in the agency’s decision to con tinue
14 The deciding official testified that she considered the fact that the Federal Protective
Service found a box cutter in the appellant’s possession at work in her decision to
indefinitely suspend him, but it was not critical to her decision because the appe llant’s
explanation, that he may need it for his bicycle, “made some sense” and was “a
legitimate reason.” IAF, Tab 31 at 139 (deposition testimony of the deciding official).
Likewise, we accord the discovery of the box cutter little weight in our analys is.
14
the indefinite suspension,15 see, e.g. , Southerland v. Department of Defense ,
119 M.S.P.R. 566, ¶ 22 (2013) (finding that the deciding official’s statements
regarding the effect of the appellant’s inability to fulfill his duties on the
efficiency of the organization constituted evidence of a discriminatory motive),
overruled on other grounds by Pridgen , 2022 MSPB 31 , ¶ 47. However, for the
reasons described above, the appellant failed to prove that his EEO activity was a
but-for cause of the agency’s decision to continue the indefinite suspension.16
The parties’ remaining arguments are unavailing.
¶22 The parties make a number of additional arguments on review, which we
have considered, but a different outcome is not warranted. Fo r instance, the
agency asserts that it is being forced to litigate identical claims in two separate
legal fora based on the appellant’s decision to file a complaint in U.S. district
15 The appellant contends that the administrative judge failed to mention that the
deciding official testified that the email was the “tipping point” in her decision to
indefinitely suspend him. PFR File, Tab 12 at 9 -10, 25; IAF, Tab 31 at 141 (deposit ion
testimony of the deciding official). However, this argument is not persuasive. The
deciding official’s testimony reflects that “some employees got concerned” after
reading the email, and she affirmed that the “fact of their concern” was a basis for h er
decision. IAF, Tab 31 at 141 (deposition testimony of the deciding official). The
deciding official explained that the email “sort of highlighted or sort of set in motion or
brought to the forefront the fact that people were concerned.” Id. (depositi on testimony
of the deciding official). The deciding official further explained that the email
“definitely tipped the scale and made people more concerned” because “people [who]
were concerned or [who] may have not been quite as concerned about some of the
thing s he said until the email, which made them think back on some of the things he had
said.” Id. (deposition testimony of the deciding official). The deciding official also
emphasized that some of the appellant’s female coworkers were so concerned after
reading the email that they requested to go home. Id. at 141-42 (deposition testimony
of the deciding official). Thus, the deciding official’s testimony, in context, reveals
that the email itself was not the tipping point; rather, it was the concer n and/or fear
expressed by other agency employees after reading the email that was the tipping point
in her decision to suspend the appellant in the first place .
16 If the appellant wishes to pursue any “injunctive or other forward -looking relief” he
believ es the Board may be authorized to order because we have found that he proved by
preponderant evidence that his EEO activity was a motivating factor in the agency’s
decision, Babb , 140 S. Ct. at 1178 , he should file a request with the Western Regional
Offic e.
15
court in August 2015, four months after he filed this appeal challenging t he
continuation of the indefinite suspension. PFR File, Tab 1 at 26 -29 (discussing
Williams v. Equal Employment Opportunity Commission , 75 M.S.P.R. 144
(1997)). Additionally, the appellant argues that the administrative judge should
have considered his disability discrimination claim or that the Board should
address this claim on its own motion. PFR File, Tab 12 at 14 -24. The parties’
arguments are identical to the arguments that were made in the 0230 matter and
were addressed by the Board in its final order. Accordingly, we incorporate by
reference those findings and conclude that the parties’ arguments do not warrant a
different outcome.
We dismiss this appeal as moot.
¶23 The Board, in its final order in the 0230 appeal, ordered the agency to
cancel the indefinite suspension at issue here, pay the appellant back pay and
interest, and provide other appropriate benefits. Becaus e we have affirmed the
administrative judge’s finding that the agency improperly continued the
suspension after its receipt of the FFD report, and we conclude that the appellant
did not prove his affirmative defenses related to the continuation of the inde finite
suspension, he is not entitled to any further relief. Accordingly, because there is
no further relief that could be provided to the appellant, this appeal is dismissed
as moot. See Hess v. U.S. Postal Service , 124 M.S.P.R. 40, ¶ 8 (2016). The
initial decision, as supplemented by this Final Order, constitutes the Board’s final
decision in this matter. 5 C.F.R. § 1201.113 .
NOTICE OF APPEAL RIG HTS17
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
17 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
16
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 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
17
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposi tion of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
18
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial revi ew pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8 ) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of 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 Fe deral Circuit or any court
19
of appeals of competent jurisdiction.18 The court of appeals must 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.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.
18 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.
20
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourt s.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MCCARDLE_TREVOR_SF_0752_15_0496_I_1_FINAL_ORDER_1990984.pdf | 2023-01-06 | null | SF-0752 | NP |
3,838 | https://www.mspb.gov/decisions/nonprecedential/MCCARDLE_TREVOR_SF_1221_17_0270_W_2_FINAL_ORDER_1991034.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TREVOR MCCARDLE,1
Appellant,
v.
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSI ON,
Agency.
DOCKET NUMBER
SF-1221 -17-0270 -W-2
DATE: January 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL2
1 The Board took official notice that Mr. McCardle died on August 4, 2019, while the
petition for review was pending, and it issued a show cause order that invited the
parties to file a motion for substitution. Petition for Review (PFR) File, Tab 5. In
response to the show cause order, the appellant’s a ttorney filed a motion for
substitution, which requests that Yolanda Acuna, Mr. McCardle’s sole heir, be
substituted in his place. PFR File, Tab 6. The motion includes a letter of instruction
from Ms. Acuna, a California death record from Lexis -Nexis, an d a declaration made
under penalty of perjury from Ms. Acuna. Id. at 6 -8. If an appellant dies, the
processing of an appeal will only be completed upon substitution of a proper party.
5 C.F.R. § 1201.35 (a). Motions to substitute must be filed with the Board within
90 days after the death of a party except for good cause shown. 5 C.F.R. § 1201.35 (b).
The appellant’s attorney filed the motion for substitution on March 23, 2022, which was
more than 90 days after Mr. McCardle’s death. However, in the absence of a timely
substitution of a party, the processing of an appeal may continue if the interests of the
proper part y will not be prejudiced. 5 C.F.R. § 1201.35 (c). No such prejudice exists
here, and the agency has not opposed the motion; thus, we find it appropriate to
continue with the processing o f this appeal. Both Ms. Acuna and Mr. McCardle will be
referred to as “the appellant.”
2 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but su ch 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 signi ficantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Michal B. Shinnar , Esquire and Renn C. Fowler , Esquire, Silver Spring,
Maryland, for the appellant.
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 appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in thi s individual right of action 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 consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new a nd material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for revi ew. We MODIFY the initial decision to
find that the appellant satisfied his prima facie burden concerning his
September 19, 2014 agency -wide email and L.T.’s complaint on his behalf to the
Office of the Inspector General (OIG) . We FURTHER MODIFY the init ial
decision to find that the agency proved by clear and convincing evidence that it
3
would have taken the same personnel actions against him in the absence of the
email or the OIG complaint filed on his behalf . Except as expressly MODIFIED
herein, we AFFI RM the administrative judge’s decision to deny corrective action
in the initial decision.
BACKGROUND
¶2 The relevant background, as recited in the initial decision, is generally
undisputed. McCardle v. Equal Employment Opportunity Commission , MSPB
Docket No. SF-1221 -17-0270 -W-2, Appeal File (W-2 AF) , Tab 15, Initial
Decision (ID) . The appellant was employed by the agency as a Paralegal
Specialist. ID at 4. He filed a complaint with the Office of Special Counsel
(OSC), alleging that the agency retaliated ag ainst him for whistleblowing
disclosures and/or protected activity , and he filed a Board appeal after OSC
concluded its investigation.3 ID at 6 -7; McCardle v. Equal Employment
Opportunity Commission , MSPB Docket No. SF -1221 -17-0270-W-1, Appeal File
(W-1 AF).
¶3 The administrative judge implicitly found that the Board has jurisdiction
over this matter , and he scheduled a hearing. ID at 8 -9; W -1 AF, Tabs 22, 27, 41;
W-2 AF, Tab 2. The appellant subsequently requested a decision on t he written
record. ID at 10; W-2 AF, Tab 6 . The administrative judge issued an initial
decision in which he denied the appellant’s request for correc tive action. ID
at 10-20. The administrative judge indicated that the only relevant
whistleblowing disclosure or protected activ ity was a January 2, 2014 OIG
3 The appellant filed several other Board appeals challenging the agency’s decision to
indefinitely suspend him, to continue that indefinite suspension, and to remove him
from Federal service. ID at 4, 6 -7, 9; McCardle v. Equal Employment Opportunity
Commission , MSPB Docket Nos. SF -0752 -15-0230 -I-1, SF -0752 -15-0496 -I-1, SF-0752-
16-0689 -I-3. The administrative judge reversed the indefinite suspension and
continuation of the indefinite suspension actions because the agency failed to meet its
burden of proof , but he upheld the removal action . The parties filed petition for review
submissions in the 0230, 0496, an d 0689 matters, which were addressed by the Board in
separate orders .
4
complaint and the appellant’s September 19, 2014 email ; he further stated that the
only relevant personnel actions were the agency’s decision to place the appellant
on administrative leave on September 23, 2014, and to require him, on
September 29, 2014, to undergo a medical examination in order to be able to
return to work. ID at 9 -10; W-1 AF, Tab 3 at 83 -86, Tab 45 at 5; W-2 AF, Tab 12
at 5 n.1. The administrative judge determined, among other things , that the
appellant did not prove by preponderant evidence that he made whistleblowing
disclosures or engaged in protected activity and the agency did not have any
knowledge of the OIG complaint before it took the personnel actions against him .
ID at 10 -20. The appellant has f iled a petition for review, the agency has filed a
response, and the appellant has filed a reply. Petition for Review (PFR) File,
Tabs 1, 3 -4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶4 In order to establish a prima facie case of reprisal under the whistleblower
protection statutes, the appellant must prove by preponderant evidence that (1) he
made a disclosure described under 5 U.S.C. § 2302 (b)(8) or engaged in protected
activity described under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D) , and (2) the
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) .4
Webb v. Department of the Interior , 122 M.S.P.R. 248 , ¶ 6 (2015). If the
appellant makes out a prima facie case, then the agency is given an opportunity to
prove, by clear and convincing evidence, that it would have taken the same
personnel action in the absence of the whistleblowing disclosure or protected
activity . Id.; 5 U.S.C. § 1221 (e)(2).
4 During the pendency of this appeal, the National Defense Authorization Act for Fiscal
Year 2018 (NDAA), Pub. L. No. 115 -91, 131 Stat. 1283 (2017), was signed into law on
December 12, 2 017. Section 1097 of the NDAA amended various provisions of T itle 5
of the U nited States Code. Our decision in this appeal would be the same under both
pre- and post -NDAA law.
5
The appellant proved by preponderant evidence that his September 19, 2014
agency -wide email contained a whistleblowing disclosure that was a co ntributing
factor in the agency’s decision to place him on administrative leave and to require
him to obtain a medical examination before he could return to work.
¶5 In his September 19, 2014 agency -wide email, t he appellant asserted,
among other things, that someone “doctored” his Official Personnel File (OPF)
“to make [his] 7 -month enforcement stint [] look like a 90 -day detail .” W-1 AF,
Tab 6 at 94 -136. The administrative judge concluded in the initial decision that
the appellant did not have a reasonable belief that he disclosed actions that
evidenced wrongdoing under 5 U.S.C. § 2302 (b). ID at 14 -20. Significantly , the
administrative judge relied on a July 29, 2013 performance plan certification , in
which the appellant acknowledged that his detail to the Enforcement Unit began
in July 2013, to find that the appellant did not have a reasonable belief that his
detail lasted 7 months . ID at 18. The administrative judge noted that the agency
had a practice of exercising its discretion to have employees perform tasks in
other office sections wit hout a formal detail. ID at 18-20. The administrative
judge discussed the appellant’s contention that the agency issued two Standard
Form (SF) 50s within 2 days which evidenced wrongdoing , but he found that the
agency was properly correcting an earlier mistake . ID at 18 -19. On review, the
appellant asserts that the administrative judge improperly applied the reasonable
belief standard and erred when he foun d that the appellant did not make a
whistleblowing disclosure in this email. PFR File, Tab 1 at 5 -6, 9-11. We agree.
¶6 A whistleblowing disclosure is a disclosure of informat ion that an employee
“reasonably believes evidences . . . any violation of any law , rule, or regulation.”
5 U.S.C. § 2302 (b)(8)(A)(i). A reasonable belief exists if a disinterested observer
with knowledge of the essential facts known to and readily ascertainable by the
employe e reasonably concludes that the actions of the Government evidence
wrongdoing as defined by the whistleblower protection statutes. Lachance v.
White , 174 F.3d 1378 (Fed. Cir. 1999); Scoggins v. Department of the Army ,
123 M.S.P.R. 592, ¶ 11 (2016).
6
¶7 The record reflects that the appellant began receiving work from the
Enforcement Unit on May 7, 2013. W-1 AF , Tab 26 at 20. On August 2, 2013,
the agency issued an SF -50 that detailed the appellant to the Enforcement Unit as
an investigator , effective July 28, 2013 , and not to exceed November 14, 2013 .
Id. at 22 . On December 4, 2013, the appellant was still working in the
Enforcement Unit and was arranging coverage with other coworkers for
subsequent weeks in December. Id. at 25. On December 11, 2013, the agency
extended the appellant’s detail to March 3, 2014. W-1 AF , Tab 1 at 154. Just
2 days later, on December 13, 2013, the agency issued an SF -50 that terminated
the appellant’s detail, effective November 15, 2013. W-1 AF, Tab 26 at 24 .
¶8 We have reviewed the appellant’s performance appraisal record covering
July 14 to October 14, 2013, which was signed both by him and by the supervisor
of the Enforcement Unit. W -1 AF, Tab 31 at 27 -38. Contrary to the
administrative judg e’s finding that the appellant knew that the detail began in
July 2013, both the appe llant and the Enforcement Unit s upervisor stated in their
respective narrative portions of the performance appraisal record that the
appellant’s detail to the E nforcement Unit began in or around June 2013. Id.
at 30, 38. Thus, we find that a disinterested person with knowledge of the
essential facts would construe from these admissions that the appellant began
performing work in the Enforcement Unit in or around June 2013.5
¶9 Similarly, a disinterested person with knowledge of the essential facts
would conclude that the appellant continued to perform work as part of his detail
in the Enforcement Unit until around December 4, 2013.6 Indeed, the appellant’s
5 Even if we assumed for the purposes of our analysis that the July 14, 2013 start date
of the appraisal period coincided with the start date of his detail, a different outcome is
not warranted because a July 14, 2013 start date is 2 weeks earlier than the s tart of the
detail as reflected in the appellant’s OPF.
6 The agency’s decision to issue multiple SF -50s in mid -December 2013 to correct its
own mistake in originally extending the appellant’s detail does not warrant a different
outcome because the record reflects that he continued to work in the Enforcement Unit
7
performance appraisal record for the period immediately following his detail was
dated from December 4, 2013, to September 30, 2014, W -1 AF, Tab 31 at 39 -49,
which supports his contention that he worked in the Enforcement Unit after
November 15, 2013.
¶10 This nearly 6 -month time frame, from June to December 2013 , far exceeds
the July 28 to November 15, 2013 time frame memorialized in the appellant’s
OPF. Under these circumstances, we find that a disinterested observer with
knowledge of the essential facts known to and readily ascertainable by the
appellant would reasonably conclude that his OPF did not correctly ident ify the
start and end dates of his detail to the Enforcement Unit and the agency’s
apparent manipulation of his SF -50s evidence d some kind of wrongdoing.7 See,
e.g., Stiles v. Department of Homeland Security , 116 M.S.P.R. 263, ¶ 17 (2011)
(finding that an employee need not prove an actual violation to establish that he
had a reasonable belief that his disclosure met the statutory cr iteria). For these
reasons, we find that the appellant’s September 19, 2014 email constituted a
protected disclosure, and we modify the initial decision in this regard.8
¶11 We next consider whether the appellant’s whistleblowing disclosure was a
contributing factor in the agency’s decision to place him on administrative leave
and/or to require him to undergo a medical examination. To prove that a
disclosure was a contributing factor in a personnel action, the appellant only need
for almost 3 weeks after the November 15, 2013 end date of the detail identified in his
OPF.
7 On review, the appellant cites 18 U.S.C . § 1001 and 5 C.F.R. § 293.103 (b) to support
his contention that he disclosed an agency violation of a law or regulation. PFR File,
Tab 1 at 6. We find that the appellant’s allegations that the agency doctored his OPF so
obviously implicate a violation of a law, rule, or regulation that it was unnecessary for
him to identify any specific law or regulation that he believed was violated. DiGiorgio
v. Department of the Navy , 84 M.S.P.R. 6 , ¶ 14 (1999).
8 Because we find that the appellant made a whistleblowing disclosure in his
September 19, 2014 email, we need not address his arguments on review regarding
other alleged disclosures that he made in this email. PFR File, Tab 1 at 7-8.
8
demonstrate that the fact of, or the content of, the disclosure was one of the
factors that tended to affect the personnel action in any way. Carey v.
Department of Veterans Affairs , 93 M.S.P.R. 676 , ¶ 10 (2003). The
knowledge/timing test allows an employee to demonstrate that the disclosure was
a contributing factor in a personnel action through circumstantial evidence, such
as evidence that the off icial taking the personnel action knew of the disclosure
and that the personnel action occurred within a period of time such that a
reasonable person could conclude that the disclosure was a contributing factor in
the personnel action. Id., ¶ 11; see 5 U.S.C. § 1221 (e)(1).
¶12 The appellant proved that his September 19, 2014 email was a contributing
factor in the agency’s decision to place him on administrative leave on
September 23, 2014, and to req uire, on September 29, 2014, that he obtain a
medical examination in order to return to work . The knowledge element is
satisfied because his email was sent to the entire agency and the agency officials
who placed the appellant on administrative leave and ordered him to take the
medical examination had knowledge of the email. W -1 AF, Tab 6 at 83 -84,
94-98; W-2 AF, Tab 11 at 126 -30. In fact, the appellant’s first-level supervisor
specifically referenced his September 19, 2014 email in the notice that required
him to take a medical examination in order to return to work . W -1 AF, Tab 6
at 83. The timing element is satisfied because the agency placed the appellant on
administrative leave and required him to take a medical examination 4 days and
10 days , respectively, after he sent the email. See Mithen v. Department of
Veterans Affairs , 119 M.S.P.R. 215, ¶ 12 (2013) (finding that a n interval of less
than 2 weeks between the appellant’s disclosure and the agency’s decision to
detail him established contributing factor under the knowledge/timing test) ;
McCarthy v. International Boundary & Water Commission , 116 M.S.P.R. 594,
¶ 41 (2011) (concluding that a 3 -day delay between the disclosure and the
agency’s decision to terminate the appel lant is sufficiently proximate that a
reasonable person could conclude that the disclosure was a contributing factor in
9
the termination) , aff’d , 497 F. App’x 4 (Fed. Cir. 2012) . Accordingly, we
conclude that the appellant has satisfied his prima facie bur den concerning his
September 19, 2014 email.
The appellant proved by preponderant evidence that he was protected from
retaliation by the OIG complaint filed on his behalf and that the OIG complaint
was a contributing factor in the agency’s order that he obtain a medical
examination in order to return to work .
¶13 The record reflects that, on January 2, 2014, agency administrative judge
L.T. submit ted a complaint on the appellant’s behalf to an OIG criminal
investigato r.9 W-1 AF, Tab 26 at 17 . The OIG compla int stated, among other
things, that the appellant asked her to “raise ” the issue of “falsified OPF
documents/entries” concerning the duration of his detail by his second -level
supervisor and other agency officials. Id. The OIG complaint also included
numerous attachments , including correspondence between the appellant and his
coworkers in the Enforcement Unit and the various SF-50s discussed above . Id.
at 18-25.
¶14 In the initial decision, the administrative judge reviewed the declarations
submitted by the appellant’s first - and second -level supervisors, and he concluded
that they did not have any knowledge of the OIG complaint before any of the
personnel actions were taken. ID at 10 -12. On review, the appellant asserts th at
the whistleblower protection stat utes protect him from retaliation because L.T.
filed the OIG complaint on his behalf and the administrative judge erred in his
analysis of the agency officials’ knowledge of this complaint . PFR File, Tab 1
at 12-14.
¶15 The appellant correctly notes that , in Burrowes v. Department of the
Interior , 54 M.S.P.R. 547 (1992), and Duda v. Department of Veteran s Affairs ,
51 M.S.P.R. 444 (1991), the Board held that the provisions of the whistleblower
9 We discern no error with the administrative judge’s finding that the appellant did not
prove by preponderant evidence t hat he made any contact with OIG that would
constitute activity protected by 5 U.S.C. § 2302 (b)(9)(C). ID at 10, 19 -20.
10
protection statutes are not limit ed to employees who actually mad e the
whistleblowing disclosures.10 PFR File, Tab 1 at 10 -12. Taken together , these
cases demonstrate that protection under the whistleblower protection statutes
extend s to employees who have a relationship with the employee who made a
whistleblowing disclosure or engaged in protected activity . Burrowes ,
54 M.S.P.R. at 550-51; Duda , 51 M.S.P.R. at 446 -47.
¶16 Burrowes is instructive to our analysis . There , the administrative law judge
appellants alleged that the former Chief Judge, who was acting as their
spokesperson , made statements to Congressional staffers disclosing agency
management and abuse when he distributed their petition to Congress . Burrowes ,
54 M.S.P.R. at 551-52. The Board noted that, under Duda, the Chief Judge’s
statements to Congressional staffers would protect the appellants from retaliation
on the basis of the disclosure if he disclosed gross mismanagement or an abuse of
authority on their behalf; however, the Board concluded that the appe llants did
not make a nonfrivolous allegation that the Chief Judge made such a protected
disclosure on their behalf. Id.
¶17 The OIG complaint in this matter stands in contrast to the alleged disclosure
in Burrowes . Pursuant to 5 U.S.C. § 2302 (b)(9)(C), “disclosing information to
the [OIG] . . . of an agency ” constitutes protected activity . We therefore conclude
that the OIG complaint constitutes protected activity. We further find that a
sufficient relationship exists between the appellant and L.T. such that he is
protected from retaliation as a result of L.T.’s protected activity. Indeed, L.T.
explicitly stated in the OIG complaint that the appellant “asked [her] to raise [th e]
issue of falsified OPF documents/entries” by various agency employees, he
provided her with documentation to forward to OIG in support of his claims, and
L.T. ultimately filed the OIG complaint in which she raised this issue on the
10 Although Burrowes and Duda involved an earlier version of the whistleblo wer
protection statutes, the parties have not identified, and we are not aware of, any change
in the statutes that would warrant a different result.
11
appellant’s behalf an d included the documentation that he provided to her.
W-1 AF, Tab 26 at 17.
¶18 Having determined that the appellant was protected from retaliation on the
basis of the OIG complaint filed on his behalf, w e must next evaluate whether the
appellant has proven contributing factor. There is no evidence whatsoever that
the appellant’s second -level supervisor had any notice of the OIG complaint
before she placed him on administrative leave on September 23, 2014. W-2 AF,
Tab 11 at 126 -27. We therefore affirm the initial decision in this regard. ID
at 11-12.
¶19 The evidence is more complicated regarding the first-level supervisor’s
knowledge of an OIG complaint before she issued the September 29, 2014 letter
that required him to obtain a medical examination before h e returned to work.
The first-level supervisor stated in her declaration that when she sent the
appellant the letter, she “did not know that on January 2, 2014 [L.T.] had
contacted [the OIG] on [the appellant’s] behalf.” W -2 AF, Tab 11 at 129. She
furth er stated that she “first became aware of [L.T.’s] contact with [OIG] on [the
appellant’s behalf]” in August 2017. Id. at 129 -30. However, o n September 24,
2014, L.T. sent an email to the appellant’s first-level supervisor and other agency
officials which advised them that she had “corresponded via e-mail with several
members of Congress . . . rega rding the escalating [equal employment opportunity
(EEO)] and [w]histleblower retaliation . . . affecting [her] co -workers (including
[the appellant and his September 19, 2014 agency -wide email]). ” W-2 AF,
Tab 13 at 17. The Chief Operating Officer responded that same day that she
would forward L.T.’s email to the OIG for appropriate action. Id. at 14. The
following day, on September 25, 2014, L.T. forward ed the Chief Operating
Officer’s response to the first-level supervisor and other agency officials, and she
advised those recipients that “since January 2014,” “official reports were made
and evidence/documentation provided” to the OIG and the OIG “is (and has been)
aware of ” the allegations of retaliation for EEO activity and whistleblower
12
disclosures and the allegations described in the appella nt’s September 19, 2014
email. Id. at 14 -15.
¶20 In contrast to the administrative judge, we find that the first-level
supervisor’s declaration, which narrowly identified when she learned that L.T.
filed the OIG complaint on the appellant’s behalf, is not dispositive on the issue
of knowledge . Rather, we find it more likely than not that, on September 25,
2014 , the first-level supervisor knew that the appellant or someone else who had
knowledge of the allegations in his September 19, 2014 email previously filed an
OIG report or complaint that described his allegations in that email in the context
of a claim of retaliation for whistleblowing disclosures or protected activity. We
therefore conclude that the appellant has satisfied the knowledge element.
¶21 Regarding the timing element, L.T.’s September 25, 2014 email predates by
4 days the first -level supervisor’s S eptember 29, 2014 decision to require him to
take a medical examination in order to return to work . Thus, we find that the
timing element is satisfied . Accordingly, we conclude that the appellant has
proven by preponderant evidence that the OIG complaint on his behalf was a
contributing factor in the agency’s decision to require him to obtain a medical
examination before returning to work . The appellant is not entitled to corrective
action because the agency proved by clear and convincing evidence that i t would
have placed him on administrative leave and /or required him to obtain a medical
examination in the absence of his September 19, 2014 email or the OIG complaint
on his behalf .11
11 For reasons that are unclear, neither party addressed the agency’s clear and
convincing burden in their respective closing submissions, below, despite the fact that
the administrative judge gave notice of that burden. W -1 AF, Tab 41 at 9 -10; W -2 AF,
Tabs 11 -14. Moreover, the petition for review submissions do not contain any
significant discussion of this issue. PFR File, Tabs 1, 3 -4. We further modify the
initial decision to discuss the agency’s burden in this regard.
13
¶22 In determining whether an agency has met its burden by clear and
convinc ing evidence ,12 the Board co nsiders the following factors: (1) the strength
of the agency’s evidence in support of its actions; (2) the existence and strength
of any motive to retaliate on the part of the agency officials involved in the
decision; and (3) any evidence that the agency takes similar actions against
employees who did not make protected disclosures or who did not engage in
protected activity, but who are otherwise similarly situated. Carr v. Social
Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999); Alarid v.
Department of the Army , 122 M.S.P.R. 600 , ¶ 1 4 (2015 ). We have considered all
of the pertinent evidence. Whitmore v. Department of Labor , 680 F.3d 1353 ,
1358 (Fed. Cir. 2012).
¶23 There was stro ng evidence to place the appellant on administrative leave
and to require him to obtain a medical examination in mid - to
late-September 2014. Importantly, the following events occurred within the
previous 2 weeks : (1) on September 5, 2014, the appellant made specific threats
to a coworker that he wanted to kill someone; (2) the appellant’s “increasingly
hostile, intimidating, disruptive, and unpredictable” behavior; (3) complaints
from the appellant’s coworkers about their fear of his behavior ; (4) on
September 23, 2014, the Federal Protective Se rvice inspected his office and
discovered a box cutter in his backpack; and (5) several employees expressed
“concern for their safety and the safety of others.” W -1 AF, Tab 6 at 83 , Tab 31
at 132 ; W-2 AF, Tab 1 2 at 17 .
¶24 The Carr factor describing the existence and strength of the agency’s
motive to retaliate favors the appellant because (1) the September 19, 2014 email
identified by name the relevant agency officials who placed him on administrative
leave and r equired him to obtain a medical examination, and he made several
12 Clear and convincing evidence “is that measure or degree of proof that produces in
the mind of the trier of fact a firm belief as to the allegations sought to be established.”
5 C.F.R. § 1209.4 (e). It is a higher standard than preponderant evidence. Id.
14
disparaging comments about other senior agency officials and the agency’s
handling of his EEO matter , and (2) the appellant’s email was referenced in
L.T.’s September 25, 2014 correspondence with the agency officials about the
OIG complaint in the context of a claim of retaliation for whistleblowing
disclosures and/or protected activity . W-1 AF, Tab 6 at 94 -98; see Whitmore ,
680 F.3d at 1370 (“Th ose responsible for the agency’s performance overall may
well be motivated to retaliate even if they are not directly implicated by the
disclosures, and even if they do not know the whistleblower personally, as the
criticism reflects on them in their capacities as managers and employees. ”).
¶25 Neither party has identified on review, nor are we aware of, any evidence
regarding the third Carr factor . Although the agency does not have an
affirmative burden to produce evidence concerning each and every Carr factor,
our reviewing court has hel d that “the absence of any evidence r elating to Carr
factor three can effectively remove that factor from the analysis,” but that the
failure to produce evidence “may be at the agency’s peril,” and may imperil the
agency’s overall case. See Whitmore , 680 F.3d at 1374 -75. Moreover, when the
agency fails to introduce relevant comparator evidence, the third Carr factor
cannot weigh in favor of the agency. Smith v. General Services Administration ,
930 F.3d 1359 , 1367 (Fed. Cir. 2019); Siler v. Environmental Protection Agency ,
908 F.3d 1291 , 1299 (Fed. Cir. 2018).
¶26 Our reviewing court has further held that the Carr factors “are merely
appropriate and pertinent considerations for determining whether the agency
carries its burden of proving by clear and convincing evidence that the same
action would have been taken absent the whistleblowing. ” Whitmore , 680 F.3d
at 1374 . Based on our review of the record, w e conclude that the strength of the
agency’ s evidence is powerful and persuasive, and it outweighs the other two
Carr factors. Indee d, as discussed above, t he agency’s decision to place the
appellant on paid administrative leave and to require him to obtain a medical
examination was based on reports that the appellant began engaging in a pattern
15
of hostile and unprofessional behavior , to include his statement that he was going
to kill someone, and the subsequent discovery of a box cutter in his backpack.
The serious nature of these allegations justifies the agency’s concern about the
appellant’s continued presence in the workplace . We are left with a firm belief
that the agency would have placed the appellant on paid administrative leave and
would have required him to obtain a medical examination absent his
September 19, 2014 email or the OIG complaint on his behalf . Accordingly, we
deny the appellant’s request for corrective action.
NOTICE OF APPEAL RIG HTS13
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 Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
13 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
16
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circu it, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appea ls for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protect ion Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discri mination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
17
judicial review of th is decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you 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
with the EEOC no later than 30 calendar days after your representative 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
18
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 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 jurisd iction.14 The court of appeals must 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 revi ew to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
14 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.
19
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about t he U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representat ion
for Merit Systems Protection Board appellants before the 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 | MCCARDLE_TREVOR_SF_1221_17_0270_W_2_FINAL_ORDER_1991034.pdf | 2023-01-06 | null | SF-1221 | NP |
3,839 | https://www.mspb.gov/decisions/nonprecedential/GOODMAN_RAUS_CH_0752_17_0125_I_1_FINAL_ORDER_1991075.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RAUS GOODMAN,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-0752 -17-0125 -I-1
DATE: January 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shaun Yancey , Esquire, Atlanta, Georgia, for the appellant.
Amber Groghan , Esquire, and Stacey Letner , Akron, Ohio, for the agency.
Stephen T. Ball , Esquire, Detroit, Michigan, 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 that the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and a dministrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
administrative judge made erroneous credibility findings and that the penalty of
removal w as unreasonable. 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 res ulting 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 petitio n for review.2
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
2 The administrative judge did not sustain Specification 9, which he characterized as
being “essentially a ‘he said/she said’ specification.” Initial Appeal File, Tab 38, Initial
Decision at 24 -25. Although t he Board has previously used t his terminology in its case
law, e.g., Faucher v. Department of the Air Force , 96 M.S.P.R. 203 , ¶ 7 (2004);
Vicente v. Department of the Army , 87 M.S.P.R. 80 , ¶ 7 (2000), we observe that sexual
misconduct cases involve no special credibility assessment , and such cases are no
different than any other case involving conflicting testimony. See, e.g. , Hillen v.
Department of the Army , 35 M.S.P.R. 453 , 458 (1987). We see no reason to label such
matters as “he said, she said,” as that may suggest that a different standard applies in
the assessment of credibili ty. Nevertheless, the terminology that the administrative
judge used to describe this specification is immaterial to the analysis and does not
affect the outcome of the decision.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
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 address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination c laims 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. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whis tleblower claims by 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 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.
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB deci sions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | GOODMAN_RAUS_CH_0752_17_0125_I_1_FINAL_ORDER_1991075.pdf | 2023-01-06 | null | CH-0752 | NP |
3,840 | https://www.mspb.gov/decisions/nonprecedential/CHEN_XIAFEN_CH_0752_17_0028_I_1_FINAL_ORDER_1991082.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
XIAFEN CHEN,
Appellant,
v.
DEPARTMENT OF COMMER CE,
Agency.
DOCKET NUMBER
CH-0752 -17-0028 -I-1
DATE: January 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stephen A. Simon , Esquire, Cincinnati, Ohio, for the appellant.
Adam A. Chandler , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL OR DER
¶1 The agency has petitioned for review and the appellant has filed a cross
petition for review of the April 23, 2018 initial decision in this appeal. Initial
Appeal File, Tab 75 , Initial Decision ; Petition for Review (PFR) File, Tabs 5 , 12.
For the reasons set forth below, we DISMIS S the appeal as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been id entified 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
November 9, 2022, and by the agency on November 1 0, 2022 . PFR File, Tab 28
at 8 . The document provides, among other things, for the dismissal of the
appeal. Id. at 4, 7.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether th ey 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 entere d into it. See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002),
overruled on other grounds by Delor me 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 ).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be enter ed into the record
for enforcement by the Board. PFR File, Tab 28 at 7. Accordingly, we find that
dismissing the appeal with prejudice to refiling (i.e., the parties normally may
not refile this appeal) is appropriate under these circumstances. In addition, we
find that the agreement is lawful on its face and freely entered into, and we
accept the settlement agreement into the record for enforcement purposes.2
2 This disposition moots the appellant’s outstanding motion to dismiss the agency’s
petition for review, PFR File, Tab 26.
3
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the se ttlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement ha ve not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims an d carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
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 forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relev ance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals f or the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided b y any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
5
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives th is 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, o r a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. distr ict courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you ma y request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with t he
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then 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:
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
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
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisd iction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information abo ut the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono represe ntation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the cou rts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CHEN_XIAFEN_CH_0752_17_0028_I_1_FINAL_ORDER_1991082.pdf | 2023-01-06 | null | CH-0752 | NP |
3,841 | https://www.mspb.gov/decisions/nonprecedential/WUESCHNER_SILVANO_ALFONS_AT_3330_16_0438_I_1_FINAL_ORDER_1991161.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SILVANO ALFONS WUESC HNER,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
AT-3330 -16-0438 -I-1
DATE: January 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Silvano Alfons Wueschner , APO, AE, pro se.
Bryan Adams , Maxwell Air Force Base , 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
denied his request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA) . Generally, we grant petitions such as this
one only in the following circum stances: 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 Opinio n and Order has been identified by the Board
as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c).
2
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 to deny the appellant ’s request for corrective action because,
consistent with the decision of the U.S. Court of Appeals for the Federal Circuit
in Kerner v. Department of the Interior , 778 F.3d 1336 , 1338 -39 (Fed. Cir. 2015) ,
the provisions of VEOA at issue do not apply to a current Federal employee , such
as the appellant, we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant is a veteran who ap plied for a Foreign Affairs Specialist
position with the agency. Initial Appeal File (IAF), Tab 1 at 1, 6 , Tab 5 at 34-37,
48-53. The announcement indicated that the position was open to current agency
employees and that it closed on November 6, 2014 . IAF, Tab 5 at 48.
The appellant was not referred on the agency ’s first certificate for the position ,
but after he inquired as to why he was not initially considered qualified , the
agency found that he was qualified and issued a second certificate with his name
on it. IAF, Tab 1 at 6 , Tab 5 at 12-13, 15, 19-22. The selecting official
selected another candidate from the second certificate who, like the appellant,
was a 10 -point preference eligible. IAF, Tab 5 at 12 -13. In February 2016,
3
the appellant filed a complaint with the Department of Labor (DOL) challenging
his nonselection. IAF, Tab 1 at 4.
¶3 After the appellant exhausted his administrative remedies with DOL, he
filed a Board appeal and requested a hearing. I AF, Tab 1 at 1 -2, 4 -5.
The administrative judge afforded the parties the opportunity to submit evidence
and argument regarding whether the agency considered or failed to consider the
appellant ’s application , and both parties responded. IAF, Tab s 7 -9.
The administrative judge issued an initial decision without holding the requested
hearing because she found that there was no genuine issue of material fact. IAF,
Tab 11, Initial Decision ( ID) at 1. She determined that the Board ha d jurisdiction
over the a ppellant ’s appeal, but she denied his request for corrective action under
VEOA. ID at 1, 3, 7. Specifically, she found that the appellant exhausted his
remedy with DOL. ID at 3. She further found that he failed to prove that the
agency did not consider his application or failed to allow him to compete for the
position. ID at 6. Finally, she found that the Board lacks jurisdiction over the
national origin, age, and disability discrimination claims that the appellant raised
in his VEOA appeal. ID at 7.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 To prevail on the merits of a right -to-compete VEOA claim under 5 U.S.C.
§ 3330a (a)(1)(B), an appellant must prove by preponderant evidence that: (1) he
exhausted his remedy with DOL; (2) he is a veteran within the meaning of
5 U.S.C. § 3304 (f)(1); (3) the action at issue took place on or after the
December 10, 2004 enactment date of the Veterans ’ Benefits Improvement Act of
2004; and (4) the agency denied him the opportunity to compete under merit
promotion procedures for a vacant position for which the agency accepted
applications from individuals outside its own workforce in violation of 5 U.S.C.
4
§ 3304 (f)(1). Becker v. Department of Veteran s Affairs , 115 M.S.P.R. 409 , ¶ 5
(2010). In his petition for review , the appellant disputes the administrative
judge ’s finding th at he failed to show that the agency violated his rights under
VEOA and requests a hearing.2 PFR File , Tab 1 at 4. However, for the following
reasons, we find that the agency must prevail as a matter of law and that the
administrative judge did not err i n not holding a hearing . Davis v. Department of
Defense , 105 M.S.P.R. 604 , ¶ 12 (2007) ( holding that the Board may decide a
VEOA claim on the merits without a hearing when, like here, there is no genuine
issue of material fact , and one party must prevail as a matter of law).
¶6 As noted, the vacancy announcement at issue in this appeal was only open
to agency employees. IAF, Tab 5 at 48. Although it went unremarked on in the
initial decision, the curriculum vita that the appellant submitted with his
application for the position reflects that he was a Federal employee, a GS -12
Historian at the Ramstein Air Force Base, when he applied for the position at
issue in 2014. IAF, Tab 1 at 1, Tab 5 at 38; PFR File, Tab 1 at 6.
2 The appellant also alleges in his petition for review t hat he did not receive several of
the Board’s orders , that he was busy because of work, moving out of Germany , and
moving into new housing, and that he had health concerns. PFR File, Tab 1 at 4.
Because the appellant registered as an e -filer, he consente d to accept electronic service
of pleadings by other registered e -filers and documents issued by the Board. 5 C.F.R.
§ 1201.14 (e)(1); IAF, Tab 1 at 2. Further, he is deemed to have rece ived the Board’s
electronically served orders on the date of electronic submission and had the
responsibility to monitor his case activity to ensure that he received all case -related
documents. Mills v. U.S. Postal Service , 119 M.S.P.R. 482 , ¶ 6 (2013); 5 C.F.R.
§ 1201.14 (j)(3), (m)(2). Therefore, the appellant’s arguments regarding lack of service
or notice of the Board’s orders is not persuasive. The appellant also claims that he
attempted to conduct discovery, but the agency representative denied his discovery
requests. PFR File, Tab 1 at 5. B ecause the appellant did not file a motion to compel
below consistent with the Board’s regulations at 5 C.F.R. § 1201.73 , he is precluded
from raising this discovery issue for the first t ime on review. See Szejner v. Office of
Personnel Management , 99 M.S.P.R. 275 , ¶ 5 (2005), aff’d , 167 F. App’x 217 (Fed. Cir.
2006). Similarly, he may not now claim injury for being denied the opportunity to
conduct depositions because he failed to avail himself of the Board’s procedures to
compel discovery by deposition and for the issuance of subpoenas. PFR File, Tab 1
at 4; see Kinsey v. U.S. Postal Service , 12 M.S.P.R. 503 , 505 -06 (1982).
5
Additionally, the appellant asserted in his responses to the questionnaire for the
position that he was a current permanent Federal employee. IAF, Tab 5 at 36.
¶7 Our reviewing court, the U.S. Court of Appeals for the Federal Circuit, has
determined that the protections of 5 U.S.C. § 3304 do not apply when a veteran is
already a Federal employee. Kerner , 778 F. 3d at 1338 -39. In discussing the
statutory language, the court stated that “[t] he text of the VEOA shows that it is
intended to assist veterans in gaining access to [F]ederal civil service
employment, not to give veterans preference in merit promotions. ” Id. at 1338.
Continuing, the court also noted that “[t] he legislative history of the VEOA
confirms that Congress did not intend for [section] 3304 to apply when a veteran
or other preference -eligible applicant is already employed in [F]ederal civil
servi ce.” Id. at 1339 . Finally, the court concluded its analysis of the legislative
history of VEOA by observing that “ statements [in VEOA’s legislative history]
show that the VEOA was specifically targeted to veterans not already employed
in the [F]ederal ci vil service. ” Id.
¶8 We are bound to follow precedential decisions of the Federal Circuit unless
they are overruled by the court sitting en banc. Conner v. Office of Personnel
Management , 120 M.S.P.R. 670 , ¶ 6 (2014), aff’d, 620 F. App ’x 892 (Fed. Cir.
2015) ; Coley v. Department of Transportation , 112 M.S.P.R. 645 , ¶ 6 (2009) .
Thus, given the appellant’s undisputed status as a current Federal employee when
he applied for the pos ition at issue, he was not entitled to recovery on his claim
that he was denied an opportunity to compete under 5 U.S.C. § 3304 (f) as a
matter of law.3 Kerner , 778 F.3d at 1338 -39; see Oram v. Dep artment of the
3 Regarding the appellant’s claim that the agency only issued the second ce rtificate to
cover its omission of him on the first certificate and his claim that, because the agency
selected the same individual from the second certificate as it had selected from the first
certificate, it denied him his right to compete, we find that consistent with the decision
in Kerner . The appellant’s claims, even if true, d o not establish a basis for relief before
the Board. In any event, the administrative judge considered the record evidence and
found that the appellant’s vague allegations of favoritis m and suspicious circumstances
6
Navy , 2022 MSPB 30 ¶¶ 13-18 (adopting the rule set forth in Kerner that the
protections of 5 U.S.C. § 3304 do not apply when a veteran is already a Federal
employee and overruling all VEOA right -to-compete cases holding otherwise) .
¶9 Accordingly, we deny the appellant’s request for corrective action under
VEOA.
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 t o file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriat e for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applica ble to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choice s of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
failed to show that the agency did not allow him to compete for the position. ID at 4 -6;
IAF, Tab 9 at 4 -6.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of rev iew rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is 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
8
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017) . If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for re view to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
9
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enha ncement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
compete nt jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court o f appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contain ed within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono fo r information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator /CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WUESCHNER_SILVANO_ALFONS_AT_3330_16_0438_I_1_FINAL_ORDER_1991161.pdf | 2023-01-06 | null | AT-3330 | NP |
3,842 | https://www.mspb.gov/decisions/nonprecedential/CARDOSO_ELIZABETH_L_PH_0845_17_0268_I_1_FINAL_ORDER_1990559.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ELIZABETH L. CARDOSO ,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
PH-0845 -17-0268 -I-1
DATE: January 5, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Emmanuel L. Barros , Brockton, Massachusetts, for the appellant.
Jane Bancroft , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her Federal Employees’ Retirement System annuity overpayment
appeal as untimely filed by 4 days without good cause. On petition for review,
the appellant argues that th e Board should waive the filing deadline because she
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
has shown good cause for filing the appeal late. Petition for Review (PFR) File,
Tab 1.
¶2 For the first time on review, the appellant’s representative submits the
following evidence and argument to prov e good cause for the filing delay. He
argues the existence of circumstances beyond the control of the appellant, who is
his sister and resides in his home. Id. at 4. He explains that the appellant cannot
handle her own affairs and that she relies on his assistance because she has
communication problems due to a medical condition . Id. at 2, 4. He submits
miscellaneous medical documents concerning the appellant’s health and medical
care in 2010, 2011, and 2014.2 Id. at 6 -10. He argues that his delay in filing the
appeal was “excusable neglect” because he is not a professional guardian and the
delay did not prejudice the agency. Id. at 3 -4. He also describes his work and
family obligations and asserts that he file d the appeal for the appellant “as soon
as he saw the decision” but he does not always “catch the mail in time.” Id.
¶3 For the reasons stated in the initial decision, we agree with the
administrative judge’s well -reasoned finding that the appellant’s rep resentative
failed to show good cause for the delay in filing her appeal. Initial Appeal File
(IAF), Tab 9, Initial Decision ( ID) at 2 -9. We find that the initial decision
thoroughly addressed the appellant’s arguments on appeal concerning the
timeliness issue. Id. Moreover, we decline to consider argument and evidence
submitted for the first time on review by the appellant’s representative because he
has failed to show that it was unavailable, despite his due diligence, when the
record closed.3 See 5 C.F.R. § 1201.115 (d). The appellant was represented by
2 Contrary to the appellant’s representation on review, we find that the medical
documents from 2010, 2011, and 2014, do not constitute “new” evidence because she
has not shown that the information contained in those documents was unavailable,
despite h er due diligence, when the record closed. PFR File, Tab 1 at 1, 3, 6 -10; see
5 C.F.R. § 1201.115 (d).
3 The Board generally will not consider new and material evidence or legal argument
raised for the first time in a petition for review absent a showing that it was not
3
her brother throughout the appeal process, and the administrative judge provided
the appellant and her representative ample opport unity to submit evidence and
argument on appeal below. ID at 2 -5, 7-8; IAF, Tab 1 at 6 , Tab 2 at 2 , Tab 6
at 2-4, Tabs 7 -8.
¶4 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.4
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).
previously av ailable despite the party’s due diligence. See 5 C.F.R. § 1201.115 (d). The
appellant has not made that showing here. The appellant, through her representative ,
does not dispute the finding of the administrative judge that she missed t hree filing
deadlines and igno red an o rder to attend a scheduled teleconference. ID at 8.
Moreover, although the appellant’s representative argues that the appellant lacked the
mental ability to pursue her appeal without his assistance, he submits medical evidence
on review indicating that the appellant is more independent than his argument suggests.
PFR File, Tab 1 at 10.
4 To the extent that the appellant’s representative challenges the merits of t he
underlying appeal, the Board declines to address t his argument on review because we
find that the administrative judge properly dismissed the appeal as untimely filed
without good cause shown . PFR File, Tab 1 at 3.
4
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failu re to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have quest ions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must fil e a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
5 Since the issuance of the initial d ecision in this matter, 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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washingt on, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a gi ven case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in pa rt, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Ci rcuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later th an 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appoint ed lawyer and
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 throug h the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your dis crimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 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
7
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 Ap peals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the cou rt’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 provide d for judicial review of certain
whistleblower claims by any court of 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 petit ions for judicial review of
MSPB decisions in 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 Novembe r 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CARDOSO_ELIZABETH_L_PH_0845_17_0268_I_1_FINAL_ORDER_1990559.pdf | 2023-01-05 | null | PH-0845 | NP |
3,843 | https://www.mspb.gov/decisions/nonprecedential/BROWNING_KIRBY_V_AT_0831_17_0193_I_1_FINAL_ORDER_1990584.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KIRBY V. BROWNING,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-0831 -17-0193 -I-1
DATE: January 5, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kirby V. Browning , Albany, Georgia, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant ha s filed a petition for review of the initial decision, which
affirmed the Office of Personnel Management ’s decision to deny his request for
an annuity. Generally, we grant petitions such as this one only in the following
circumstances: the initial decisi on contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the co urse 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 requests a subpoena to obtain
evidence, concerning his medical history fr om birth to 1965, that he asserts would
help demonstrate that he was not in the right state of mind when he decided to
resign and request his retirement deductions in 1990 . Petition for Review File,
Tab 1 at 1-2; Initial Appeal File, Tabs 1, 8 . Such evid ence is irrelevant , however,
because there is no statu tory basis for waiving the rule that receipt of a refund of
retirement deductions voids annuity rights on the grounds that an individual was
mentally incompetent when he applied for and received the ref und. See 5 U.S.C.
§ 8342 (a); cf. Balkovec v. Office of Personnel Management , 83 M.S.P.R. 621 ,
¶¶ 5-6 (1999) (finding that an annuitant’s mental incompetence was not a basis
for waiving the statutory requirement that he el ect a survivor annuity within
2 years after his post -retirement marriage) . Moreover, the appellant failed to
avail himself of the Board’s subpoena procedures by first filing a motion with the
administrative judge . See Baldwin v. Tennessee Valley Authority , 5 M.S.P.R.
125, 127 (1981); 5 C.F.R. § 1201.81 (a). We therefore deny his request.
Accordingly, the initial decision is affirmed.
3
NOTICE OF APPEAL RIGHTS2
You may obtain revi ew of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situatio n and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below t o decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule , an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
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 discrimination. If so, you may obtain
judicial review of this decision —including a disposition of you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your repres entative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex , national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
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 informa tion for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your repre sentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, 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 personne l practice described in
section 2302(b) other than practices described in se ction 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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 intere sted in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appel lants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BROWNING_KIRBY_V_AT_0831_17_0193_I_1_FINAL_ORDER_1990584.pdf | 2023-01-05 | null | AT-0831 | NP |
3,844 | https://www.mspb.gov/decisions/nonprecedential/ADAMS_CHARLES_DERECK_DC_3443_17_0431_I_1_FINAL_ORDER_1990617.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHARLES DERECK ADAMS ,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER S
DC-3443 -17-0431 -I-1
DC-3343 -17-0432 -I-1
DC-0752 -17-0433 -I-1
DC-3443 -17-0643-I-11
DATE: January 5, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL2
Charles Dereck Adams , Herndon, Virginia, pro se.
James J. Delduco , Esquire , and Michael Colopy , Esquire, Redstone
Arsenal, Alabama, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
1 We have joined these cases for adjudication b ased on our determination that doing so
will expedite processing of the cases and will not adversely affect the interests of the
parties. 5 C.F.R § 1201.36 (a)(2), (b).
2 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedent ial orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
FINAL ORDER
¶1 The appellant has filed petition s for review of the initial decision s, the first
of which indicated above was dismissed as barred by res judicata, the second and
fourth of which were dismissed for lack of jurisdiction , and the third of which
was dismissed as barred b y collateral estoppel . Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contain s
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings du ring either the course of
the appeal or the initial decision w as not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is availab le that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After ful ly considering the filings in th ese appeal s, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition s for review. Therefore, we DENY the petition s for review and AFFIRM
the initial decision s, which are now the Board’s final decision s. 5 C.F.R.
§ 1201.113 (b).
BACKGROUND
¶2 The appellant was a GS -15 Information Technology (IT) Specialist with the
agency’s Missile Defense Agency (MDA). On January 29, 2009, he was
reassigned to a GS -15 IT Specialist at the Pentagon but was very shortly
thereafter reassigned back to his position at MDA. A Board administrative judge
dismissed the appellant’s appeal of that action for lack of jurisdiction, Adams v.
Department of Defense , MSPB Docket No. DC -3443 -15-0768 -I-1, Initial
Decision at 1, 3 (July 15, 2015), the full Board denied the appellant’s petition for
review, Adams v. Department of Defense , MSPB Docket No. DC -3443 -15-0768-I-
3
1, Final Order , ¶ 1 (Oct. 27, 2015 ), and the U.S. Court of Appeals for the Federal
Circuit affirmed the Board’s decision , Adams v. Department of Defense , 651 F.
App’x 993 (Fed. Cir. 2016).
¶3 The appellant was indefinitely suspended continuously from June 15, 2009,
based on his loss of access to classified information. That action was upheld on
appeal, Adams v. Department of Defense , MSPB Docket No. DC -0752 -09-0620 -I-
1, Initial Decision at 1, 6 (Aug. 12, 2009), the Board denied the appellant’s
petitio n for review of that decision, Adams v. Department of Defense , MSPB
Docket No. DC -0752 -09-0620 -I-1, Final Order at 2 (Sept. 23, 2009), and the
Federal Circuit affirmed the Board’s decision , Adams v. Department of Defense ,
371 F. App’x 93 (Fed. Cir. 2010). The appellant was removed effective June 29,
2010, for failure to maintain a security clearance with access to Sensitive
Compartmented Information, necessary to perfor m the duties of his position. On
appeal, a Board administrative judge affirmed the agen cy’s action. Adams v.
Department of Defense , MSPB Docket No. DC -0752 -10-0741 -I-1, Initial
Decision at 1, 5 (Sept. 28, 2010). Earlier , on April 20, 2010, the appellant
submitted an application for immediate retirement , which the agency denied on
the basis that he did not meet the requirements for such. On appeal, the appellant
argued that the agency denied his request for early retirement under the agency’s
Voluntary Early Retirement Authority (VERA) and that the denial was the result
of discrimination an d retaliation. The administrative judge dismissed that a ppeal
for lack of jurisdiction . Adams v. Department of Defense , MSPB Docket No.
DC-3443 -10-0711 -I-1, Initial Decision at 1, 4 (Sept. 22, 2010). The Board joined
for adjudication the appellant’s pet itions for review of th ose two decisions and
denied both . Adams v. Department of Defense , MSPB Docket Nos. DC -0752 -10-
0741 -I-1 and DC -0752 -10-0711 -I-1, Final Order (Mar. 4, 2011). The Federal
Circuit affirmed the Board’s decision as to the appellant’s re moval . Adams v.
Department of Defense , 688 F.3d 1330 , 1334 (Fed. Cir. 2012) . Notwithstanding,
the appellant filed another appeal challenging his indefinite suspension and
4
removal. The administrative judge dismissed th at appeal as barred by res
judicata , and t he full Board denied the appellant’s petition for r eview of that
initia l decision . Adams v. Department of Defense , MSP B Docket No. DC-0752 -
14-1033 -I-1, Final Order, ¶ 1 (Apr. 30, 2015).
ANALYSIS
¶4 The four appeals here joined for review all relate to the actions and/or the
time frame described above. We address each appeal in turn.
MSPB Docket No. DC-3443 -17-0431 -I-1
¶5 In this appeal, the appellant alleged that he was improperly suspended
without pay for a year prior to his “unlawful[]” removal and that the agency
violated his du e process rights by “Not Treating Me as Innocent U ntil Proven
Guilty.” 0431 Initial Appeal File (0431 IAF), Tab 1 at 4. The appellant alleged
that the agency’s action was motivated by age and race discrimination, id., and he
requested a hearing, id. at 2.
¶6 Noting the appellant’s previous appeals of his i ndefinite suspension and
removal, the administrative judge directed him to show why this appeal should
not be barred by res jud icata. 0431 IAF, Tab 3. In response, the appellant argued
that the current appeal was not a duplication of his previous appeals, and he
alleged that the agency denied him due process, committed various prohibited
personnel practices, and willfully withh eld evidence. 0431 IAF, Tabs 4-5, 7.
¶7 In an initial decision based on the written record, the administrative judge
dismissed the appeal as barred by res judicata. 0431 IAF, Tab 8, 0431 Initial
Decision ( 0431 ID) at 1, 4. He found that: (1) an indefinite suspension of more
than 14 d ays is an action over which the Board has jurisdiction, and both the
Board and Federal Circuit were fora of competent jurisd iction; (2) the latter
rendered a final judgment on the merits of the indefinite suspension; (3) the same
cause of action, the propr iety of the indefinite suspension, was at issue in both the
prior appeal and the current one; and (4) both the appellant and the agency were
5
parties to the prior action. Noble v. U.S. Postal Service , 93 M.S.P.R. 693, ¶ 5
(2003); 0431 ID at 3. The administrative judge further found that the appellant’s
claims of denial of due process and agency wrongdoing in allegedly withholding
evidence did not preclude the application of res judicata and that the Board
cannot consider the appellant’s alleged prohibited personnel practices in the
absence of jurisdiction. 0431 ID at 4.
¶8 On review, the appellant r eferenc es the Federal Circuit’s de cision , which
found that his VERA claim was within the Board’s jurisdiction under 5 U.S.C.
§ 8461 because it conce rned employment rights and benefits , Adams , 688 F.3d
at 1336, and he argues that, based on that decision, the instant appeal is within the
Board’s jurisdiction. 0431 Petition for Review ( PFR ) File, Tab 1 at 4. Here, it is
undisputed that the Board has jurisdiction over an appeal of an indefinite
suspension . However, the instant appeal was dismissed under the doctrine of res
judicata; thus, the appellant’s jurisdictional arguments are inapposite. Moreover,
the appellant has not shown that the court’s decision finding B oard jurisdiction
over his VERA claim has any bearing on the action here at issue. Nor has he
shown that the administrative judge erred in finding that this appeal is barr ed by
res judicata. Corpuz v. Office of Personnel Management , 100 M.S.P.R. 560, ¶ 3
(2005).
¶9 The appellant also appears to argue on review that the agency’s decision is
based on discrimination. 0431 PFR File, Tab 1 at 7 , Tab 3 . As noted, the
administrative judge found that, absen t jurisdiction, the Board cannot adjudicate
prohibited personnel practices. 0431 ID at 4. In fact, however, the administrative
judge correctly found that the Board has jurisdiction over the appellant’s
indefinite suspension . Id. at 3. Even so , it remain s true that the Board lacks the
authority to review the appellant’ s discrimination claim s because it lacks the
authority to review the merits of an action that is based on a suspension or
revocation of access to classified material. Helms v. Department of the Army ,
114 M.S.P.R. 447, ¶ 9 (2010). The Federal Circuit made such a finding in its
6
decision affirming the Board’s decision sustaining the appellant’s indefinite
suspension. Adams , 371 F. App’x at 9 5-96. In any event, to the extent the
administrative judge erred, any such error did not prejudice the appellant’s
substantive rights . Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282
(1984). The administrative judge correctly found that the appellant is precluded
by res judicata from relitigating his indefinite suspension, and that bar includ es
his related claims of discrimination. Peartree v. U.S. Postal Service , 66 M.S. P.R.
332, 337 (1995).
¶10 The appellant argues on review that he was denied a hearing. 0431 PFR
File, Tab 1 at 6. Because the material facts relevant to the dispositive res judicata
issue are undisputed, we find that the administrative judge did not err in d eclining
to conduct a hearing. Adams v. Department of Defense , MSPB Docket No.
DC-0752 -14-1033 -I-1, Final Order, ¶ 8 (Apr. 30, 2015).
¶11 It is unclear from the appellant ’s petition for review whether, in addition to
his indefinite suspension, he is also challenging his removal. To the extent that
he is, however, he has not shown that the administrative judge erred in finding
that, for the same reasons, any such appeal is also barred by res ju dicata.3
0431 ID at 2 -3.
MSPB Docket No. DC-3443 -17-0432 -I-1
¶12 In this appeal, the appellant alleged that the agency improperly lowered his
performance rating by two levels and gave him a “1” rating without placing him
on a performance improvement plan (PIP ). 0432 IAF, Tab 1 at 4. He also
claimed that the agency discriminated and retaliated against him , id., and he
requested a hearing , id. at 5.
¶13 The administrative judge advised the appellant that the Board lacks
jurisdiction to adjudicate an appeal of an e mployee’s performance evaluation and
3 It appears that, in this petition for review, the appellant is challenging the initial
decision in another of his appeals, MSPB Docket No. DC -3443 -17-0432 -I-1. 0431 PFR
File, Tab 1 at 5. Therefore, we do not address those concerns here.
7
that placement on a PIP is a prerequisite to the agency ’s taking a
performance -based action under 5 U.S.C. chapter 43 , and he ordered the appellant
to file evidence and argument showing a nonfrivolous allegation of Boar d
jurisdiction. 0432 IAF, Tab 3. In response, the appellant argued that the agency
took these actions because of his race and age and described the actions as unfair,
unethical, immoral, and wrong, as well as violative of undescribed policies,
procedures , rules , regulations, laws , and statutes. 0432 IAF, Tab 4 at 6. He also
argued that the agency willfully withheld vital evidence “that would have
changed MSPB’s decision .” Id. at 7. He submitted a copy of the Federal
Circuit’s decision finding Board jurisdiction over his VERA claim . Id. at 17.
The agency urged that the appeal be dismissed for lack of jurisdiction. 0432 IAF,
Tab 6.
¶14 In an initial decision based on the written recor d, the administrative judge
found that the Board lacks jurisdiction to adjudicate an appeal of an employee’s
performance evaluation under the provisions of chapter 75 , 0432 IAF, T ab 8,
0432 ID at 2, and fo und that the appellant’s allegations of prohi bited personnel
practices fail to establish the Board’s jurisdiction over the appeal , 0432 ID at 3.
As such, the administrative judge dismissed the appeal for lack of jurisdiction.
0432 ID at 1, 3.
¶15 On review , the appellant again argues that the Board has juris diction over
his appeal because of the Federal Circuit’s decision finding Board jurisdiction
over his VERA claim. 0432 PFR, Tab 1 at 4-5. As noted previously, t he court
found Board jurisdiction over that claim under 5 U.S.C. § 8461 (e) because it
provides that an administrative action or order affecting the rights or interests of
an individual under chapter 84 of the U.S. Code (Federal Employees’ Retirement
System) may be appealed to the Board. Adams, 688 F.3d at 1336. The appellant
has not shown, nor is it otherwise apparent, that the court’s decision is controlling
over the matter here at issue.
8
¶16 Although t he appellant argues the merits of the agency’s decisions
regarding his performance evaluation, 0432 PFR File, Tab 1 at 7 , Tab 2 at 4 , any
such arguments may not be heard absen t Board jurisdiction over his appeal. He
also argues that he was improperly denied a hearing . 0432 PFR File, Tab 1
at 5-6. However, because he failed to make a nonfrivolous allegation that the
Board has jurisdiction over his appeal, he is not entitled to a hearing , and
therefore the administrative judge did not err i n deciding this case on the written
record. Upshaw v. Consumer Product Safety Commission , 111 M.S.P.R. 236,
¶ 13 (2009).
¶17 The appellant argues that there i s new a nd material evidence that, despite
his due diligence, was not available when the record closed. 0432 PFR File,
Tab 1 at 6. The evidence, which the appellant has not submitted, appears to relate
to his claim that the agency improperly withheld evidence in connection with one
of the appeals he filed in 2009 . Id. at 5-6; 0432 PFR File, Tab 2 at 10 -11. 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). Moreover, the Board ordinarily 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). The appellant has not
shown that any such evidence is new or material to the matter at issue in this
appeal.4
4 The appellant also urges that the U.S. District Court for the Eastern District of
Virginia erred when it upheld “the MSPB decision.” 0432 PFR File, Tab 1 at 7. The
appellant has not further identified any such decision , and our research does not reveal
one. Even if it exists, the appellant has not shown that such a decision has any
relevance to the matter at issue.
9
MSPB Docket No. DC-0752 -17-0433 -I-1
¶18 In this a ppeal, the appellant alleged that the agency unlawfully lowered his
salary, reducing his pay, when it “pulled [him] back” from a position at the
Pentagon for which he had been selected . 0433 IAF, Tab 1 at 4. He requested a
hearing . Id. at 2.
¶19 Noting that the Board already had considered the matter in a prior appeal ,
which it dismissed for lack of jurisdiction, the administrative judge ordered the
appellant to show why this appeal should not be dismissed as barred by collateral
estoppel. 0433 IAF, Tab 8. In his response, the appellant argued that the current
appeal was new and that the “violation” had not been addressed in any of his
prior appeals. 0433 IAF, T ab 9. He also argued that this appeal concerns
discrimination and retaliation by the agency , which withheld “vital evidence .”
Id. at 5-6; 0433 IAF, Tabs 10 -11. The agency urged that the appeal be dismissed.
0433 IAF, Tab 12.
¶20 In an initial decision based on the written record, the administrative judge
dismissed the appeal as barred by collateral estoppel. 0433 IAF, Tab 13, 0433
Initial Decision (0433 ID) at 1, 4. He found that : (1) the current issue is
identical to the issue involved in the prior action wherein the appellant challenged
the agency action in reducing him in pay when it reassigned him to his former
position ; (2) the administrative judge dismissed that appeal for lack of
jurisdiction and that decision was affirme d by the Board and by the Federal
Circuit; (3) the previous jurisdictional determination was necessary to the final
judgment against the appellant; and (4) he had a full and fair opportunity to
litigate the issue before the Board and the Federal Circuit. McNeil v. Department
of Defense , 100 M.S.P.R. 146, ¶ 16 (2005); 0433 ID at 2 -3.
¶21 The appellant challenges the initial decision on review but does not address
the dispositive issue of collateral estoppel. 0433 PFR File, Tabs 3 -4. The agency
has responded, urging that the petition for review be denied. 0433 PFR File,
Tab 7.
10
¶22 The Board has found that collateral estoppel should be appl ied to previously
adjudicated jurisdictional issues, so as to preclude their relitigation. Peartree ,
66 M.S.P.R. at 338. Here, the administrative judge correctly found that the
current appeal raises a jurisdictional claim identical to the claim raised in the
appellant’s prior appeal ; that is, that he was reduced in pay when the agency
“pulled [him] back” from a position for which he had been selected. In the prior
appeal, the Board found that the appellant failed to nonfrivolously allege that the
agency’s action in “pulling [him] back” from the IT Specialist position to which
he had been reassigned is a matter over which the Board has jurisdiction under
5 U.S.C. § 7512 , Adams, MSPB Docket No. DC -3443 -15-0768 -I-1, Final Order ,
¶ 8, and the Federal Circuit affirmed the Board’s decision, Adams , 651 F. App’x
at 995 . The jurisdictional issue was litigated in the former appeal , and that issue
was necessary to the resulting judgme nt to dismiss the appeal for lack of
jurisdiction. Moreover, the appellant, as a party to the former appeal, had a full
and fair opportunity to litigate the jurisdictional issue . Therefore, the appellant
has not shown that the administrative judge erred in finding that he is collaterally
estopped from relitigating his jurisdictional claim that he was reduced in pay
when he was reassigned back to his position, and the claim is, as in the former
appeal, dismissed for lack of jurisdiction.5 McNeil , 100 M.S.P.R. 146 , ¶ 19.
MSPB Docket No. DC-3443 -17-0643 -I-1
¶23 In this appeal, the appellant argued that the agency obstructed justice when
it intentionally withheld evidence during one of his early appeals. 0643 IAF,
5 The appellant filed his petition for review in this case approximately 60 days after the
filing deadline . 0433 PFR File, Tab 3. The Office of the Clerk of the Board directed
him to file a motion to : (1) accept the fil ing as timely ; and/or (2) waive the time limit
for good cause. 0433 PFR File, Tab 5. The agency moved that the appellant’s petition
for re view be dismissed as untimely filed, 0433 PFR File, Tab 6, and the appellant
responded to the Office of the Clerk of the Board’s letter regarding the timeliness of his
petition and in opposition to the agency’s motion , 0433 PFR File, Tab 7. Because of
our finding above that the appeal was properly dismissed as barred by collateral
estoppel, we ha ve made no findings on whether the petition for review was timely filed.
11
Tab 1. He requested a hearing . Id. at 2. The administrative judge advised the
appellant that the Board may not have jurisdiction over such an action and of the
limited except ions to the rule that the Board may not address matters over which
it otherwise lacks jurisdiction .6 The administrative judge ordered the appellant to
file evidence and argument that the action is within the Board’s jurisdiction .
0643 IAF, Tab 2. The ap pellant submitted a pleading that was substantially
similar to his appeal but did not address the jurisdictional issue to which the
administrative judge alerted him. 0643 IAF, Tab 3.
¶24 In an initial decision based on the written record, the administrative j udge
dismissed the appeal for lack of jurisdiction. 0643 IAF, Tab 4, 0643 Initial
Decision (0643 ID) at 1, 3.
¶25 The appellant has filed a petition for review, 0643 PFR File, Tab 1, and a
supplement, PFR File , Tab 2. The agency has responded in opposition to the
appellant’s petition, PFR File , Tab 4, and the appellant has replied to the
agency’s submission, PFR File , Tabs 5 -7.
¶26 In his petition, the appellant raises the same arguments as in his petitions
for review in the other cases here joined. Specifical ly, he argues that the Board
has jurisdiction over this appeal based on the Federal Circuit’s decision finding
Board jurisdiction over his VERA claim, that the agency obstructed justice by
withholding evidence relevant to one of his 2009 appeals, 0643 PFR File, Tab 2
at 9-15, Tab 5 , and that it discriminated and retaliated against him , 0643 PFR
File, Tab 1 at 5 -8, Tab 2 at 5, 15 -18, and committed other prohibited personnel
practice s, 0643 PFR File, Tab 2 at 7 -8, Tab 6 at 7 -9. He also argues that the
admini strative judge erred in denying him a hearing . 0643 PFR File, Tab 2 at 7.
6 The administrative judge explained that the appellant could allege that the agency’s
action was in retaliation for protected whistleblowing activity or that it was the product
of discrimination based on uniformed service or violative of his veterans’ preference
rights. 0643 IAF, Tab 2.
12
¶27 Notwithstanding the appellant’s claims on review, he has not shown that the
administrative judge erred in dismissing this appeal for lack of jurisdiction. It is
well established that the Board’s jurisdiction is limited to those matters over
which it has been given jurisdiction by law, rule, or regulation. See, e.g. , Scott v.
Department of the Air Force , 113 M.S.P.R. 434 , ¶ 5 (2010). The appellant has
failed to make a nonfrivolous allegation that there is a statutory or regulatory
basis upon which the Board may review his claims against the agency. As we
previously have noted, he has not shown that the court’s decision finding Board
jurisdiction over his VERA claim is controlling over the matter at issue. Nor has
he shown that any action allegedly taken by the agency during adjudication of an
appeal he filed in 2009 has any bearing on the jurisdictional issue presented in
this appeal. Absen t an appealable action, the Board lacks jurisdiction to consider
the appellant’s allegations of discrimination, retaliation, and other prohibited
personnel practices. 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) (finding that p rohibited personnel
practices under 5 U.S.C. § 2302 (b) are not an independent source of Board
jurisdiction ). And, because the appellant failed to make a nonfrivolous allegation
that the Board has jurisdiction over this appeal, the administrative judge did not
err in deciding this case on the written record.7 Upshaw , 111 M.S.P.R. 236, ¶ 13.
7 The appellant has filed motions for summary judgment i n the above cases seeking a
ruling in his favor because of delays resulting from the Board’s continued lack of
quorum. 0431 PFR File, Tab 8; 0432 PFR File, Tab 6; 0433 PFR File, Tab 12;
0643 PFR File, Tab 11. Specifically, he alleges that he is being den ied his
Constitutional right to a speedy adjudication of his cases. Id. However, the right to a
speedy and public trial as provided for in the 6 th Amendment of the Constitution
applies to criminal prosecutions , and therefore any such right is not implica ted in a
proceeding before the Board. Biddle v. Department of the Treasury , 63 M.S.P.R. 521 ,
529 (1994) (finding that 6 th Amendment right s were not implicated because the
individual was not subjected to a custodial interrogation). Moreover, the Board’s
procedures do not allow for summary judgme nt. Savage v. Department of the Army ,
122 M.S.P.R. 612 , ¶ 46 (2015 ), overruled in part by Pridgen v. Office of Management &
Budget , 2022 MSPB 31 , ¶¶ 23 -25. Therefore, the appellant’s motions are denied.
13
NOTICE OF APPEAL RIGHTS8
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following 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:
8 Since the issuance of the initial decision in this matter, the Board may have updated
the n otice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
14
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
15
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
16
disposition of alle gations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.9 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Plac e, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellant s,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www .mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept repre sentation in a given case.
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain wh istleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
17
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscour ts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ADAMS_CHARLES_DERECK_DC_3443_17_0431_I_1_FINAL_ORDER_1990617.pdf | 2023-01-05 | null | S | NP |
3,845 | https://www.mspb.gov/decisions/nonprecedential/DOMINADO_ERLINDA_T_SF_0831_17_0622_I_1_FINAL_ORDER_1990690.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ERLINDA T. DOMINADO,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
SF-0831 -17-0622 -I-1
DATE: January 5, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rodelio V. Mendoza , Camarines Sur, Philippines, for the appellant.
Kristine Prentice , 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 of the Office of Personnel Management (OPM)’s
reconsideration decision as untimely filed. On petition for review, the appellant
argues that there is good cau se for the Board to waive the untimeliness of her
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
appeal and reasserts the merits of her claim for death benefits under the Civil
Service Retirement System based on her deceased husband’s Federal service.
Petition for Review File, Tab 1 at 4 -5. 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 applicatio n 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 o utcome 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, w e DENY the petition for review. Except as expressly
MODIFIED to correct the length of the filing delay , we AFFIRM the initial
decision.
¶2 In finding that the appeal was untimely by 3 months, the administrative
judge apparently did not account for the 30 days the appellant had to file her
appeal after receiving OPM’s reconsideration decision. Initial Appeal File (IAF),
Tab 11, Initial Decision ( ID) at 4; see 5 C.F.R. § 1201.22 (b)(1) (requiring an
appeal of an agency action to be filed no later than 30 days after the effective
date, if any, or 30 days after the date of the appellant’s receipt of the agency’s
decision, whichever is later). The administrative judge deemed the appellant to
have received OPM’s reconsideration decision 2 weeks after its April 18, 2017
issuance. ID at 4. Therefore, when factoring in the 30 -day filing period, the
appellant had until June 1, 2017, to file her appeal, making her August 1, 2017
appeal untimely by 2 months. Id.; IAF, Tab 1; see 5 C.F.R. § 1201.22 (b)(1). We
find that the appellant’s delay is still significant . ID at 4 -5; see Alvarado v.
3
Defense Commissary Agency , 88 M.S.P.R. 46 , ¶¶ 4 -5 (2001) ( finding a 2 -month
delay significant). A ccordingly, the administrative judge’s error was harmless
and does not provide a basis for review. Panter v. Department of the Air Force ,
22 M.S.P.R. 281 , 282 (1984) (explaining that an adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision).
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described b elow do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all fil ing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
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.
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
(1) Judicial review in general . As a general rule, an appellant seeking
judic ial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any a ttorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and tha t such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
5
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017) . If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for rev iew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
6
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice describe d in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to 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 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
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | DOMINADO_ERLINDA_T_SF_0831_17_0622_I_1_FINAL_ORDER_1990690.pdf | 2023-01-05 | null | SF-0831 | NP |
3,846 | https://www.mspb.gov/decisions/nonprecedential/ABE_ANTONIO_L_SF_0831_16_0716_I_1_FINAL_ORDER_1990710.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANTONIO L. ABE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
SF-0831 -16-0716 -I-1
DATE: January 5, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Consuelo T. Abe , Malabon City, Philippines, for the appellant.
Cynthia Reinhold , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) denying his request to elect a survivor annuity under the Civil Service
Retirement System (CSRS) for his current spouse . 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 regul ation 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 t he resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulati ons, section 12 01.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review . Except as expressly
MODIFIED by this Final Order to reflect the correct statutory provision
applicable to this case, we AFFIRM the initial decision .
BACKGROUND
¶2 The appell ant retired under the CSRS in April 1972. I nitial Appeal File
(IAF), Tab 1 at 5, Tab 8 at 28 . At the time of his retirement, the appellant was
married and elected a survivor annuity for his then -spouse . IAF, Tab 8 at 28.
The appellant’ s then -spouse died in July 2008 , and the appellant re married in
July 2009. Id. at 25 -27. By letter dated June 6 , 201 5, the appellant informed
OPM that his former spouse was deceased and he had remarried, and requested
that “appropriate action be taken on matters immediat ely.” Id. at 22. OPM
construed the appellant’s request as one to provide survivor annuity benefits for
his current spouse and d enied the request because the appellant did not notify
OPM of an election of a reduced annuity with a survivor benefit within 2 years of
the marriage. Id. at 20. The appellant requested reconsideration of OPM’s
decision, stating that he failed to request a survivor annuity for his current spouse
within 2 years of their marriage because weather conditions initially prevented
3
him from mailing the request , and then he had forgotten to mail it , citing his age
as the reason for his forgetfulness. Id. at 16, 19. On July 14, 2016, OPM issued a
reconsideration decision affirming its initial decision . Id. at 8-9.
¶3 The appellant timely filed a Board appeal of OPM’s reconsideration
decision.2 IAF, Tab 1. He did not request a hearing. Id. at 1. The administrative
judge issued an Order Closing the Record finding that the Board has jurisdiction
over the appeal, notifying the appellant of the requirements to prove his
eligibility to elect a survivo r annuity for his current spouse, and providing the
parties with the opportunity to submit additional evidence and argument prior to
the date on which the record was scheduled to close . IAF, Tab 9 at 1 -4.
¶4 The administrative judge issued an initial decision affirming OPM’s
reconsideration decision , based on the written record. IAF, Tab 11 , Initial
Decision (ID). The administrative judge found that the appellant was required by
statute to make a written request to elect a survivor annuity for his current spouse
within 2 years of their marriage but that he did not submit a request until 2015
and that therefore, he did not timely elect a survivor annuity f or his cur rent
spouse. ID at 3-4. The administrative judge further found that the appellant did
not show a basis for waiving the deadline to elect a survivor annuity . ID at 4 -7.
Specifically, she found that the statute setting forth the filing deadline did not
provide for a waiver of the deadline, that OPM did not misinform the appellant of
the necessary steps to make the election , and that OPM complied with the
statutory requirement to annually inform the appellant of his election rights . Id.
¶5 The appellant ha s timely filed a petition for r eview in which he requests
leniency concerning his failure to timely elect a survivor annuity and argues that
it is not in the interest of justice to deny his request because he is more than
2 The appellant received OPM’s July 14, 2016 reconside ration decision on July 31,
2016 . IAF, Tab 1 at 3, Tab 8 at 7. He mailed his appeal, postmarked August 16, 2016,
to OPM, which forwarded the ap peal to the Board ’s Washington Regional Office. IAF,
Tab 1 at 9, 11.
4
90 years old and sickly.3 Petitio n for Review ( PFR ) File, Tab 1 at 2 . OPM has
filed a response opposing the petition for review. PFR File, Tab 4. For the
reasons set forth below, we affirm the initial decision , as modified .
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 An individual seeking retirement benefits bears the burden of proving his
entitlement to those benefits by preponderant evidence. Cheeseman v. Office of
Personnel Management , 791 F.2d 138 , 140 -41 ( Fed. Cir. 1986); 5 C.F.R.
§ 1201.56 (b)(2)(ii). To meet this burden, the appellant must show that he elected
to provide a survivor ann uity for his current spouse in a signed writing received
by OPM within 2 years after his remarriage . 5 U.S.C. § 8339 (j)(5)(C)(i); Kirk v.
Office of Personnel Management , 93 M.S.P.R. 547 , ¶ 4 (2003).
¶7 Here, the ad ministrative judge found that the appellant married his current
spouse in July 2009 but did not write to OPM to elect a survivor annuity for her
until June 6, 2015, ne arly 6 years after the marriage. ID at 3 -4. T hus, the
administrative judge determined that the appellant had not timely elected a
survivor a nnuity for his current spouse. ID at 4. The appellant has not disputed
this finding, and we discern no reason to disturb the administrative judge’s
finding, as the record reflects that she considered the evidence as a whole, drew
appropriate inferences, and made reasoned conclusions . Id.; see Clay v.
Department of t he Army , 123 M.S.P.R. 245 , ¶ 6 (2016) (finding no reason to
disturb the administrative judge’s findings when she considered the evid ence 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).
3 The appellant mailed his petition for review of the December 12, 2016 initial decision
on January 4 or 6, 2017 , to the Board’s Western Regional Office . PFR File, Tab 1
at 3-4. The Western Regional Office forwarded the petition for review to the Office of
the Clerk of the Board, which deemed the petition ti mely filed on January 6, 2017. PFR
File, Tab 1 at 1, Tab 2.
5
¶8 On review, the appellant requests a waiver of the filing deadline because of
his advanced age and ill health . PFR File, Tab 1 at 2. As noted by the
administrative judge, the Board has recognized three bases for waiving a filing
deadline prescribed by statute or regulation: (1) the statute or regulation may
provide for a waiver under specified circumstances; (2) an agency’s affirmative
misconduct may preclude enforcing the de adline under the doctrine of equitable
estoppel; and (3) an agency’s failure to provide a notice of rights and the
applicable filing deadline, where such notice is required by statute or regulation,
may warrant waiver of the deadline. Perez Peraza v. Offi ce of Personnel
Management , 114 M.S.P.R. 457 , ¶ 7 (2010). Although the administrative judge
did not cite the correct s tatutory p rovision applicable to this case, 5 U.S.C.
§ 8339 (j)(5)(C)(i) , she correctly found that the statutory provision at issue does
not permit waiver of the filing deadline.4 ID at 3 -4; see Shaughnessy v. Office of
Personnel Management , 43 M.S.P.R. 633 , 637 -38 ( 1990) (holding that, in the
case of an annuitant who was married at the time of his retirement and later
remarried, 5 U.S.C. § 8339 (j)(1) did not provide a waiver of the time limit to
make an election after remarriage on the basis that the annuitant was mental ly
incompeten t); cf. Schoemakers v. Office of Personnel Management , 180 F.3d
1377 , 1381 -82 (Fed. Ci r. 1999) (holding that 5 U.S.C. § 8339 (k)(2)(A) does not
permit waiver of the filing deadline to e lect a survivor annuity after marriage
because of the annuitant’s mental condition).
4 The admi nistrative judge cited 5 U.S.C. § 8339 (k)(2)(A), which pertains to an
employee who was unmarried at the time of retirement, whereas 5 U.S.C.
§ 8339 (j)(5)(C)(i) pertains to an employee who was married at the time of retirement.
ID at 3. The appellant in this case was married at the time of retirement. See IAF,
Tab 8 at 28. Thus, we modify the initial decision to reflect that the statutory provision
applicable to this case is 5 U.S.C. § 8339 (j)(5)( C)(i). However, sections 8339(k)(2)(A)
and 8339(j)(5)(C)(i) provide nearly identical language regarding the requirement that
electing a survivor annuity occu r within 2 years after a post-retirement marriage; thus,
the admin istrative judge’s citing the incorrect statutory provision did not affect her
correct analysis of the statutory language . Compare 5 U.S.C. § 8339 (j)(5)(C)(i) , with
5 U.S.C. § 8339 (k)(2)(A).
6
¶9 The appellant does not dispute the administrative judge’s f inding that the
agency did not engage in affirmative misconduct that could preclude enforcing
the filing deadline, nor do we discern any reason to disturb the administrative
judge’s findings on this point . ID at 4 -5; see Clay , 123 M.S.P.R. 245 , ¶ 6.
¶10 The appellant also does not dispute the administrative judge’s finding that
OPM met its burden to show that i t properly notified the appellant of the
applicable filing deadline. ID at 5 -7. OPM has a statutory obligation to notify
annuitants annually of their survivor annuity election rights under 5 U.S.C.
§ 8339 (j). Act of July 10, 1978, Pub. L. No. 95 -317, 92 Stat. 382 (1978)
(codified at 5 U.S.C. § 8339 note); Brush v. Office of Personnel Management ,
982 F.2d 1554 , 1559 -60 (Fed. Cir. 1992). OPM has the burden of proving both
that it sent the annual notice a nd the contents of the notice. Brush , 982 F.2d
at 1561 ; Cartsounis v. Office of Personnel Management , 91 M.S.P.R. 502 , ¶ 5
(2002). In determining whether the content of the agency’s annual notice s to an
annuitant adequately informed him of his election rights, the Board will look to
the notice s sent immediately after the event that would result in the need to make
a new election. Allen v. Office of Personnel Management , 99 M.S.P.R. 653 , ¶ 9
(2005). If OPM establishes through credible evidence that it is more probable
than not that it sent the annual notices, the appellant then must p resent credible
testimony or other evidence sup porting the contention that he did not receive the
notices. Cartsounis , 91 M.S.P.R . 502 , ¶ 5.
¶11 Here, the OPM official responsible for printing and distributing retirement
forms and notices provided an affidavit explaining that general notices regarding
survivor elections were sent annually to all annuitants on OPM’s master annuity
roll from 1989 to 2010. IAF, Tab 8 at 10 -11. Such notice satisfies OPM’s burden
of proving that it sent the required annual notice. See Schoemaker s, 180 F.3d
at 1380 -81 (holding that a similar affidavit from a person familiar with how
annual notices are prepared and sent can satisfy OPM’ s burden to show that the
annual notices were sent ). The record includes copies of the notices sent to the
7
appellant in December 2009 and December 2010 , which contain a section titled
“Survivor Election for a Spouse You Marry After Retirement” and provide the
appellant with his right to elect a survivor annuity, including information
regarding how to make an el ection, the time frame within which to do so, and the
consequences of choosing a survivor annuity benefit. IAF, Tab 8 at 12-15.
Accordingly, we agree with the administrative judge’s findings that OPM sent
general notices in December 2009 and December 201 0, within the 2 -year period
after the appellant’s remarriage , and we find that the content of each notice
adequately informed him of his right to elect a survivor annuity .5 ID at 5-7; see
Dorsey v. Office of Personnel Management , 587 F.3d 1111 , 1115 (Fed. Cir. 2009)
(finding that OPM provided the annuitant adequate notice of his right to elect a
survivor annuity where the notices provided informa tion regarding how to make
an election, the time frame within which he needed to do so, and the
consequences of choosing a survivor annuity benefit) . Based on our review of the
record, we also agree with the administrative judge that the appellant did not
present evidence showing that he did not receive the annual notices. I D at 6. We
thus find no basis on which to waive the statutory filing deadline.
¶12 Accordingly, we find that the administrative judge properly affirmed OPM’s
reconsideration decision t hat denied the appellant’s request for a survivor annuity
for his current spouse.
5 The administrative judge only made findings regarding the adequacy of the content of
OPM’s notice s with respect to the December 2010 notice . ID at 6 -7. Our review of the
record reflects that the notice to which the administrative judge referred was issued in
December 2009, and the second notice that appears in the record was issued in
December 2010. IAF, Tab 8 at 12-15. The notices could cause confusion as to the date
on which they were sent to the appellant , as the f irst notice refers to a January 2010
payment, and the second notice refers to a January 2011 payment; however, these
refere nces appear in the context of notify ing the annuitan t of adjustments to his
payment for the upcoming year . See id. We find that the content of each notice
adequately informed the appellant of his right to elect a survivor annuity. See id .
8
NOTICE OF APPEAL RIG HTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your 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).
6 Since the issuance of the initial decision in this matter, the B oard may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide 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 a ction involves a claim of
10
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or oth er security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed throu gh the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your di scrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
Washin gton, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW1 2G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
11
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no 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.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guid e for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ABE_ANTONIO_L_SF_0831_16_0716_I_1_FINAL_ORDER_1990710.pdf | 2023-01-05 | null | SF-0831 | NP |
3,847 | https://www.mspb.gov/decisions/nonprecedential/MCGINNIS_DANNY_AT_3330_17_0413_I_1_FINAL_ORDER_1990233.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DANNY MCGINNIS,
Appellant,
v.
DEPARTMENT OF ENERGY ,
Agency.
DOCKET NUMBER
AT-3330 -17-0413 -I-1
DATE: January 4, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Danny McGinnis , Atlanta, Georgia, pro se.
Kristopher D. Muse , Esquire, Oak Ridge, Tennessee, 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 Veterans Employment Opportunities Act of 1998
(VEOA) for lack of jurisdiction because he failed to prove that he exhausted his
administrative remedy before the Department of Labor (DOL). On petition for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in a ny future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
review, the appellant argues t hat, pursuant to 5 C.F.R. § 1201.154 (b), he was not
required to exhaust his administrative remedies before DOL. Generally, we grant
petitions such as this one only in the following cir cumstances: 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 argum ent is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.11 5). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision , which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
¶2 In challenging the initial decision, t he appellant’s reliance on 5 C.F.R.
§ 1201.154 , which sets forth the time limits for appealing an otherwise appealable
action with discrimination claims to the Board, is misplaced. As the
administrative judge correctly found, absent an otherwise appealable act ion, a
claim of prohibited discrimination does not confer Board jurisdiction. Initial
Appeal File , Tab 7 at 3. Further, t he administrative judge properly found that the
appellant failed to establish Board jurisdiction over his VEOA claim because he
did n ot show that he exhausted his administrative remedies before DOL. See
5 U.S.C. § 3330a ; Wheeler v. Department of Defense , 113 M.S.P.R. 376 , ¶ 7
(2010) (explaining that to meet the exhaustion requirement, an appellant
generally must establish that: (1) he filed a complaint with the Secretary of
Labor ; and (2) the Secretary of Labor was unable to resolve the complaint within
3
60 days or has issued written notification that DOL’s efforts have not resulted in
resolution of the complaint).
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 repre sent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits a nd 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 f inal Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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 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 Mad ison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will acc ept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
5
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the l ink below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimina tion claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this de cision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
6
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for t he Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our 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 o n
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdic tion.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MCGINNIS_DANNY_AT_3330_17_0413_I_1_FINAL_ORDER_1990233.pdf | 2023-01-04 | null | AT-3330 | NP |
3,848 | https://www.mspb.gov/decisions/nonprecedential/MCGINNIS_DANNY_CH_3330_17_0257_I_1_FINAL_ORDER_1990239.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DANNY MCGINNIS,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
CH-3330 -17-0257 -I-1
DATE: January 4, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Danny McGinnis , Atlanta, Georgia, pro se.
Cleora S. Anderson , Smyrna, 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 his appeal u nder the Veterans Employment Opportunities Act of 1998
for lack of jurisdiction because he failed to prove that he exhausted his
administrative remedy before the Department of Labor . On petition for review,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; th e 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 cas e law. See 5 C.F.R. § 1201.117 (c).
2
the appellant does not address the dispositive i ssue of the Board’s jurisdiction.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 stat ute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discr etion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations , section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for g ranting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
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 appropriat e forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which opti on 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 The appellant’s petition for review was untimely filed on August 6, 2017, 4 days after
the filing deadline. Petition for Review File, Tab 1. In l ight of our dismissal for lack
of jurisdiction, however, we do not reach the issue of the timeliness of 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 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 r eview the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judici al review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the cour t at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.usc ourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our 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 e ndorses 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 y ou
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 de cision 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 d isabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.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 re quest review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives th is 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 Fede ral Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Oper ations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal c ases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
petition for review wit hin 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submi t your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the co urt’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono r epresentation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Ci rcuit. 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 acce ssed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MCGINNIS_DANNY_CH_3330_17_0257_I_1_FINAL_ORDER_1990239.pdf | 2023-01-04 | null | CH-3330 | NP |
3,849 | https://www.mspb.gov/decisions/nonprecedential/KILLORAN_AARON_R_SF_0752_16_0464_I_1_FINAL_ORDER_1990248.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
AARON R. KILLORAN,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
SF-0752 -16-0464 -I-1
DATE: January 4, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeff Letts , Ruther Glen, Virginia , for the appellant.
David Thayer , Bremerton, 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
affirmed his indefinite suspension . On petition for review, the appellant argues
that the administrative judge erred in determining when the condition subsequent
that triggered the end of his indefinite suspension occurred . Generally, we grant
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
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the f acts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; o r new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition f or review and
AFFIRM the initial decision, which is now the Board’s final decision.2 5 C.F.R.
§ 1201.113 (b).
2 On petition for review, the appellant argues that even if the administrative j udge was
correct about when the condition subsequent occurred, he is still entitled to back pay for
the 7 -day period from that date until the day the agency returned him to duty. Petition
for Review File, Tab 1 at 5 -7. Because the appellant did not raise this argument below,
we need not consider it. Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271
(1980). However, even if we were to consid er the appellant’s argument, we find that it
would not provide a basis for reversing the initial decision . The agency was required to
act within a reasonable amount of time to end the suspension once the appellant’s
security clearance was restored. Sikes v. Department of the Navy , 2022 MSPB 12 , ¶ 8.
The agency contacted the appellant the same day that his security clearance was
restored and ended t he suspension at the beginning of the following week based on the
appellant’ s request to “start fresh.” Initial Appeal File, Tab 7 at 13. We find that the
agency acted within a reasonable time to end the suspension under the circumstanc es of
this case.
3
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described 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 you r particular case. If 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 r eview of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 Circu it
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petit ioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our w ebsite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorn ey will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that suc h action
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 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 petit ion for review “raises no challenge to the Board’s
6
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this 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.
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
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | KILLORAN_AARON_R_SF_0752_16_0464_I_1_FINAL_ORDER_1990248.pdf | 2023-01-04 | null | SF-0752 | NP |
3,850 | https://www.mspb.gov/decisions/nonprecedential/MCGINNIS_DANNY_AT_3330_17_0343_I_1_FINAL_ORDER_1990262.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DANNY MCGINNIS,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
AT-3330 -17-0343 -I-1
DATE: January 4, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Danny McGinnis , Atlanta, Georgia, pro se.
Cleora S. Anderson , Smyrna, 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 his appeal u nder the Veterans Employment Opportunities Act of 1998
for lack of jurisdiction because he failed to prove that he exhausted his
administrative remedy befo re the Department of Labor . On petition for review,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orde rs,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Boar d
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the appellant focuses his arguments on the merit s of his appeal and does not
address the dispositive issue of the Board’s 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 dec ision 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 w ith 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 recor d
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 tim e limit for seeking such
review and 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 revie w 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 chose n forum.
Please read carefully each of the 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 con tact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellant s before the 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 opt ion applies to you only if you have claimed that 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 —includi ng a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 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
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 in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 pra ctices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 c ourt of 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 whistleb lower 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 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.
Contact information for the courts of appeals can be fou nd at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MCGINNIS_DANNY_AT_3330_17_0343_I_1_FINAL_ORDER_1990262.pdf | 2023-01-04 | null | AT-3330 | NP |
3,851 | https://www.mspb.gov/decisions/nonprecedential/BISWAS_NEENA_DA_1221_15_0471_W_2_FINAL_ORDER_1990324.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
NEENA BISWAS,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DA-1221 -15-0471 -W-2
DATE: January 4, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Todd J. Harlow , Esquire, Dallas, Texas, for the appellant.
Sterling L. DeRamus , Esquire, Birmingham, Alabama, for the appellant.
Jason C. Green , Esquire , 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
denied her request for corrective action in connection with her individual right of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
action appeal . On petition for review, the appellant dispute s the administrative
judge’s findi ngs and conclusions and challenges certain of his rulings . 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 erroneou s 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 in volved 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 Cod e 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).
2 On review, the appellant argues that the administrative judge improperly excluded the
testimony of one of her proposed witnesses. Petition for Review (PFR) File, Tab 1
at 35-36. After the administrative judge’s ruling, he afforded the appellant an
opportunity to submit a written objection, but she did not do so. Therefore, she failed
to preserve the issue for review. Sanders v. Social Security Administration ,
114 M.S.P.R. 487 , ¶ 9 (2010). The appellant also argues on review that she was denied
the opportunity to call a rebuttal wi tness. PFR File, Tab 1 at 36. Again, the appellant
did not object to the administrative judge’s ruling and therefore she did not preserve
that ruling for review. Sanders , 114 M.S.P.R. 487 , ¶ 9. Moreover, the administrative
judge’s ruling was well within his discretion to control the proceedings, which includes
the authority to exclude testimony he believes would be irrelevant, immaterial, or
unduly repetitious , and the appellant has not shown that , by his ruling, the
administrative judge abused that discretion. Guerrero v. Department of Veterans
Affairs , 105 M.S.P.R. 617 , ¶ 20 (2007 ).
3
NOTICE OF APPEAL RIG HTS3
You may obtain review of t his final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the 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 requirements. Failure to file within the applicable time
limit may result in the dismis sal of your case by your chosen forum.
Please read careful ly each of the 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 infor mation.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your p etition to the court at the
following address:
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 we bsite, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono represent ation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board 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 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
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 informati on for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any su ch request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then 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 whi stleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other p rotected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
6
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of compete nt jurisdiction.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 judi cial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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. T he 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 Circui t 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/CourtWeb sites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BISWAS_NEENA_DA_1221_15_0471_W_2_FINAL_ORDER_1990324.pdf | 2023-01-04 | null | DA-1221 | NP |
3,852 | https://www.mspb.gov/decisions/nonprecedential/SPALDING_ZERINA_CB_1208_22_0016_U_4_ORDER_ON_STAY_EXTENSION_REQUEST_1988786.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-4
DATE: December 27, 2022
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 , Esquire, 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 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
ORDER ON STAY REQUES T
¶1 Pursuant to 5 U.S.C. § 1214 (b)(1)(B), the Office of Special Counsel (OSC)
request s 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 determine s whether to seek
corrective action. For the reasons discussed below, OSC ’s request is GRANTED.
BACKGROUND
¶2 On July 28, 2022, Member Limon granted OSC ’s request for a 45 -day stay
of the proposed removal of Ms. Spalding based on a charge of misconduct .
Special Counsel ex rel. Zerina Spalding v. Department of the Treasury , MSPB
Docket No. CB -1208 -22-0016 -U-1, Order on Stay Request (July 28, 2022). OSC
subsequently requested, and the Board granted, two additional extensions of the
stay.2 The current stay i ssued on November 9, 20 22, is in effect through
January 8, 2023. Special Counsel ex rel. Zerina Spalding v. Department of the
Treasury , MSPB Docket No. CB -1208 -22-0016 -U-3, Order on Stay Request
(Nov. 9 , 2022) (U-3 Order on Stay Request) .
¶3 On December 22, 2022, OSC filed a timely consent request to extend the
stay through January 23, 2023 . Special Counsel ex rel. Zerina Spalding v.
Department of the Treasury , MSPB Docket No. CB -1208 -22-0016 -U-4, Stay
Request File (U -4 SRF), Tab 1 . OSC requests a 14-day extension to the existing
stay in order to account for the fact that the current stay extension request and
agency response deadlines fall on weekend days and occur during the winter
holiday season. Id. at 2. Specifically, OSC requests that the fo llowing deadlines
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, Order on Stay Request ( Sept. 9 , 2022) . By order
dated November 9, 2022 , the Board extended the stay through January 8, 2023 . Special
Counsel ex rel. Zerina Spalding v. Department of the Treasury , MSPB Docket No.
CB-1208 -22-0016 -U-3, Order on Stay Request (Nov. 9 , 2022) .
3
should apply to extend the stay order: (1) the existing stay should be extended
through and including January 23, 2023; (2) any request for an additional
extension by OSC should be due on or before January 9, 2023; and (3) the
agency’s r esponse to any extension request sho uld be due on or before
January 16, 2023. Id. at 2-3.
ANALYSIS
¶4 A stay granted pursuant to 5 U.S.C. § 1214 (b)(1) is issued to maintain the
status quo ante while OSC and the agency involved resolve the disputed matter.
Special Counsel v. Department of Transportation , 74 M.S.P.R. 155 , 157 (1997).
The purpose of the stay is to minimize the consequences of an alleged prohibited
personnel practice. Id. In evaluating a request for an extension of a stay, the
Board will review the record in the light most favorable to OSC and will grant a
stay extension request if OSC ’s prohibited personnel practice claim is not clearly
unreasonable. Id. at 158. The Board may grant the extension for any period that
it considers appropriate. 5 U.S.C. § 1214 (b)(1)(B); Special Counsel ex rel.
Waddell v. Department of Justice , 105 M.S.P.R. 208 , ¶¶ 3, 5 (2007) (noting that a
separa te determination must be made on the length of the requested stay ). Under
the circumstances, and in light of the fact that the agency consent s to the
extension, we find it appropriate to extend the stay through January 23 , 2023 .
ORDER
¶5 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 November 9, 2022 , is extended through and
including January 23 , 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
4
impose upon her any requirement that 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 pursua nt 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 w ith any further
evidentiary support, on or before January 9, 2023 ; and
(5) Any comments on such a request that the agency wants the Board to
consider pursuant to 5 U.S.C. § 1214 (b)(1)(C) and 5 C.F.R.
§ 1201.136 (b) must be received by the Clerk of the Board on or
before January 17, 2023 .3
FOR THE BOARD:
Washington, D.C. /s/
Jennifer Everling
Acting Clerk of the Board
3 Although OSC requests January 16, 2023, as the due date for an agency to comment
on any request, that day is a Federal holiday. See 5 C.F.R. § 1201.23 (providing that, if
a filing deadline falls on a weekend or Federal holiday, the filing period includes the
next business day). | SPALDING_ZERINA_CB_1208_22_0016_U_4_ORDER_ON_STAY_EXTENSION_REQUEST_1988786.pdf | 2022-12-27 | null | CB-1208 | NP |
3,853 | https://www.mspb.gov/decisions/nonprecedential/EDWARDS_JASPER_DC_0714_17_0751_I_1_FINAL_ORDER_1987821.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JASPER EDWARDS, JR.,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DC-0714 -17-0751 -I-1
DATE: December 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jasper Edwards, Jr. , Medford, New York, pro se.
Mauricus Lofton , 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 November 16, 2017 initial
decision in this appeal. Petition for R eview (PFR) File, Tab 1 ; Initial 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
File, Tab 12 , Initial Decision. For the reasons set forth below, we DISMISS the
appeal as settled.
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant on
February 23, 2020 , and signed and dated by the agency on February 24, 2020.
PFR File, Tab 17 at 6. The document provides, among other things, for the
dismissal of the appeal. Id. at 4.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcemen t 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 i nto 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 underlyin g 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 not be entered into the
record for enforcement by the Board. PFR File, Tab 17 at 5 (providing for
enforcement by the Equal Employment Opportunity Commission) . As the parties
do not intend for the Board to enforce the terms of the settlement agreement, we
need not address the additional considerations regarding enforcement, and we do
not enter the settl ement agreement into the record for enforcement.
¶5 Accordingly, we find that dismissing the appeal “with prejudice to refiling ”
(i.e., the parties normally may not refile this appeal) is appropriate under these
circumstances. This is the final decision of the Merit Systems Protection Board
3
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 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).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particul ar
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of A ppeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services pr ovided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action w ith an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and you r 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, relig ion, sex, 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 .
Contac t information for U.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.a spx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and y our representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
6
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. C ourt of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circui t
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitio ners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our web site at
http://www.mspb.gov/probono for information regarding pro bono representation
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | EDWARDS_JASPER_DC_0714_17_0751_I_1_FINAL_ORDER_1987821.pdf | 2022-12-21 | null | DC-0714 | NP |
3,854 | https://www.mspb.gov/decisions/nonprecedential/CLAYTON_JEFFREY_CB_7121_18_0005_V_1_ORDER_1987837.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JEFFREY CLAYTON,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CB-7121 -18-0005 -V-1
DATE: December 21, 2022
THIS ORDER IS NONPRECEDENTIAL1
M. Jefferson Euchler , Esquire, Virginia Beach, Virginia, for the appellant.
Janean B. Dunn , Esquire, Winston -Salem, North Carolina, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
ORDER
¶1 The appellant has filed a request for re view of an arbitration decision that
sustained the agency’s decision to remove him for unacceptable performance.
For the reasons set forth below, we GRANT the request fo r review under 5 U.S.C.
§ 7121 (d) and FORWARD the matter to the Washington Regional Office 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
further adjudication in accordance with the U.S. Court of Appeals for the Federal
Circuit’s decision in Santos v. National Aeronautics & Space Administration ,
990 F.3d 1355 (Fed. Cir. 2021) .
BACKGROUND
¶2 The appellant was a Vocational Rehabilitation Counselor for the agency.
Request for Review (RFR) File, Tab 1 at 117. The princi ple duties of Vocational
Rehabilitation Counselor consist of counseling (55%) and case management
(45%). Id. at 43 -45. The counseling duties involve counseling disabled veterans
to assist them in reaching their educational, occupational, and rehabilitati on
goals, and the case management duties involve maintaining case records and
facilitating the veterans’ interaction with the agency and various third parties. Id.
The appellant’s performance was rated on four critical elements —timeliness,
production, qu ality of work, and customer service.2 Id. at 20.
¶3 The agency placed the appellant on a 3 -month performance improvement
plan (PIP) from October through December 2016 . Id. After the close of the PIP,
the agency determined that the appellant failed to demon strate acceptable
performance in the elements of production, quality of work, and customer service.
Id. Effective April 23, 2017, the agency removed the appellant for failure to meet
performance expectations.3 Id. The appellant grieved the removal, raising a
claim of disability discrimination under a reasonable accommodation theory, and
the grievance went to arbitration. On October 21, 2017, the arbitrator issued a
2 There are several key documents missing from the record, including the performance
improvement plan notice, the appellant’s performance standards, the notice of proposed
removal, and the removal de cision. Cf. 5 C.F.R. § 1201.155 (d)(4) (stating that a
request for arbitration review must contain copies of t he agency ’s decision and other
relevant documents ). We must therefore rely on the arbitrator’s characterization of
these documents in reaching our decision.
3 The arbitration decision inaccurately states that the appellant was removed on
April 23, 2016. RFR File, Tab 1 at 20.
3
decision denying the disability discrimination claim and upholding the removal.
Id. at 17 -37.
¶4 The appellant has requested review of the arbitrator’s decision, arguing that
the performance standards at issue are unr easonable and therefore invalid and that
the agency’s failure to provide him a reasona ble accommodation deprived him of
a reasonable opportunity to demonstrate accepta ble performance during the PIP.
Id. at 4 -14. The agency has filed a response. RFR File, Tab 6.
ANALYSIS
¶5 The Board has jurisdiction to review an arbitrator ’s decision under 5 U.S.C.
§ 7121 (d) when the subject matter of the grievance is one over which the Board
has jurisdiction, the appellant has alleged discrimination under 5 U.S.C.
§ 2302 (b)(1) in connection with the underlying action, and a final decision has
been issued. Sadiq v. Department of Veterans Affairs , 119 M.S.P.R. 450, ¶ 4
(2013); 5 C.F.R. § 1201.155 (a). Each of these conditions has been satisfied in
this case. Nevertheless, t he standard of the Board ’s revi ew of an arbitrator ’s
award is limited; such awards are entitled to a greater degree of deference than
initial decisions issued by the Board ’s administrative judges. Vena v. Department
of Labor , 111 M.S.P.R. 165 , ¶ 5 (2009). The Board will modify or set aside an
arbitrator’s award only when the arbitrator has erred as a matter of law in
interpreting a civil service law, rule, or regulation. Id. Even if the Board
disagrees with an arbitrator ’s decision, absent legal error, the Board cannot
substitute its conclusions for those of the arbitrator. Id. Thus, the arbitrator ’s
factual determinations are entitled to deference unless the arbitrator erred in his
legal analysis, for example, by misallocating the burdens of proof or employing
the wrong analytical framework. Hollingsworth v. Department of Commerce ,
115 M.S.P.R. 636 , ¶ 7 (2011) .
4
The appellant’s arguments do not provide a basis to disturb the arbitration
decision.
¶6 At the time the arbitration decis ion was issued, the Board’s case law stated
that, in a performance -based removal under chapter 43, the agency must establish
the foll owing by substantial evidence: (1) the Office of Personnel Management
approved its performance appraisal system and any si gnificant changes thereto;
(2) the agency communicated to the appellant the performance standards and
critical elements of h is position; (3) the appellant’s performance standards were
valid under 5 U.S.C. § 4302 (c)(1)4; (4) the agency warned the appellant of the
inadequacies of h is performance during the appraisal period and gave h im a
reasonable opportunity to demonstrate acceptable performance; and (5) the
appellant’s performance remained unacceptable in one or more of t he critical
elements for which he was provided an opportunity to demonstrate acceptable
performance. Lee v. Envir onmental Protection Agency , 115 M.S.P.R. 533 , ¶ 5
(2010). The arbitrator correctly applied th is correct legal standard and found that
the agency proved each element of its case by substantial evidence. RFR File,
Tab 1 at 26 -32, 36 -37. In particular, the arbitrator found that the appellant’s
performance remained unacceptable under the quality of work and customer
service standards. Id. at 26, 29 -32.
¶7 On review, the appellant argues that the arbitrator erred in finding that the
performance standards were valid. Id. at 11 -14. Specifically, he argues that the
performance standards were not realistic, reasonable, and attainable, as evidenced
by the fact that the large majority of his colleagues failed to meet the standards
and the agency amended the standards shortly after his removal . Id. at 12 -14; see
Johnson v. Department of the Army , 44 M.S.P.R. 464 , 466 -67 (1990) ( explaining
that, to show that a performance standard is valid, an agency must demonstrate
4 The criteria set forth in 5 U.S.C. § 4302 (c)(1) formerly appeared at 5 U.S.C.
§ 4302 (b)(1) prior to the enactment of the National Defense Authorization Act for
Fiscal Year 2018, Pub. L. No. 115 -91, Div. A, tit. X, § 1097(d)(1), 131 Stat. 1283, 1619
(2017) , which was signed into law on December 12, 2017.
5
that the standard is reason able, realistic, and attainable ). As an in itial matter, the
Board has held that an appellant generally may not seek to set aside or modify an
arbitration decision on a ground not raised before the arbitrator . Jones v.
Department of Energy , 120 M.S.P.R. 480 , ¶ 3 (2013) , aff’d , 589 F. App’x 972
(Fed. Cir. 2014) . In this case, we find no indication in the record that t he
appellant disputed the reasonableness of his performance standards prior to his
request for arbitration review. Furthermore, even assuming that the appellant
disputed the reasonableness of his performance standards before the arbitrator,
the appellant is essentially arguing that the arbitrator ignored certain evidence in
reaching his conclusion. RFR File, Tab 1 at 12-14. However, the arbitrator ’s
failure to mention all of the evidence of record does not mean that he did not
consider it in reaching h is decision , Gustave -Schmidt v. Department of Labor ,
87 M.S.P.R. 667 , ¶ 10 (2001) , and this omission does not mean that his decision
is contrary to civil service law, rule, or regulation, Benson v. Department of the
Navy , 65 M.S. P.R. 548 , 554 (1994) . The Board has found that an argument that
an arbitrator ignored certain evidence re lates only to the arbitrator ’s factual
findings and conclusions and do es not demonstrate legal error. Moore v.
Department of Commerce , 55 M.S.P.R. 451 , 458 (1992) . Thus, we find the
appellant’s arguments regarding the agency’s case in chief unpersuasive and we
discern no basis to distur b the arbitrator’s conclusion that the agency satisfied the
above -articulated legal standard by substantial evidence .
¶8 The appellant also argues that the agency ’s failure to provide him with a
reasonable accommodation during the PIP deprived him of a reasonable
opportunity to demonstrate acceptable performance. RFR File, Tab 1 at 4 -11. It
is not entirely clear to us whether the appellant is directing his argument at the
agency ’s case in chief, his own affirmative defense , or both. In any event, we
find that the appellant ’s arguments are insufficient to show legal error in the
arbitrator’s decision. The appellant renders an account of the facts underlying his
disability discrimination claim, a sserts that the agency failed to offer him a
6
reasonable accommodation until after the PIP was over, and argues that the
failure to accommodate deprived him of a reasonable opportunity to demonstrate
acceptable performance. Id. at 7 -11. He argues that the arbitrator “err [ed] in
assessing whether any of the requested accommodations at any point were
unreasonable and by ignoring the accommodations that he did find reasonable .”
Id. at 9. We find, however, that the appellant ’s arguments pertain to the
arbitr ator’s factual determinations and not to any alleged error in the legal
analysis such as misallocating the burdens of proof or using the wrong analytical
framework . See Shestak v. Social Security Administration , 84 M.S.P.R. 307 , ¶ 6
(1999) . In his decision, the arbitrator discussed the reasonable accommodation
issue at length and found that the agency reacted appropriately to the appellant ’s
requests for accommodation, including making some reasonable accommodations
available to him during the PIP. RFR File, Tab 1 at 27 -29, 32 -36. Although the
appellant disagrees with the arbitrator’s factual conclusions, we find that the
arbitra tor employed the proper legal standard in reaching them. For these
reasons, we find that the appellant has not presented an adequate basis for the
Board to disturb the arbitrator’s decision.
We forward the matter for further adjudication in light of Santo s.
¶9 Although the appellant has identified no basis for us to disturb the
arbitration decision , we nonetheless must forward this matter to an administrative
judge for further adjudication. To this end, during the pendency of request for
review in this case, the Federal Circuit found in Santos , 990 F.3d at 1360 -61, that ,
in addition to the five elements of the agency’s case set forth above, the agency
must also justify the institution of a PIP by proving by substantial evidence that
the appellant ’s performanc e was unacceptable prior to the PIP. The Federal
Circuit’s decision in Santos applies to all pending cases, including this one,
regardless of when the events took place. Lee v. Department of Veterans Affairs ,
2022 MSPB 11 , ¶ 16. Accordingly, we forward this matter to the regional office
to provide the parties an opportunity to present argumen t and additional evidence
7
regarding whether the appellant’s performance during the period leading up to the
PIP was unacceptable5; if appropriate, the administrative judge assigned to the
matter may convene a hearing . See id. , ¶¶ 16-17. Regardless of whe ther the
agency meets its additional burden, if the argument or evidence regarding the
appellant’s pre -PIP performance affects the administrative judge’s analysis of the
appellant’s affirmative defense , the administrative judge should make
recommended find ings regarding the same .
ORDER
¶10 For the reasons set forth above, we forward this matter to the Washington
Regional O ffice for further adjudication. The administrative judge assigned to
the matter shall conduct further proceedings as necessary, consistent with this
Order, and make recommended findings to the Board regarding (1) the issue of
whether the agency proved the charge of unacceptable performance under the
standard articulated in Santos , and (2) the appellant’ s affirmati ve defense of
discrimination on the basis of failure to provide a reasonable accommodation .
After the administrative judge issues the recommended decision , the case will be
forwarded back to the Board. The parties may file excepti ons to the
administrative j udge’ s recommended decision with t he Clerk of the Board within
20 days of the date of the recommended decision . The parties may respond to any
5 We acknowledge that the arbitrator discussed shortcomings with the appellant’s
performance prior to the PIP perio d. E.g., RFR File, Tab 1 at 19 -20, 35. Nonetheless,
in light of the now -modified legal standard, we find it appropriate to provide the parties
with the opportunity to present argument and additional evidence.
8
submission by the other party within 15 days of the date of such submission. The
Board will subsequently iss ue a final decision on the merits of the appellant’ s
request for review.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CLAYTON_JEFFREY_CB_7121_18_0005_V_1_ORDER_1987837.pdf | 2022-12-21 | null | CB-7121 | NP |
3,855 | https://www.mspb.gov/decisions/nonprecedential/MAIBIE_FLOYD_B_DE_0752_17_0030_I_1_FINAL_ORDER_1987874.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
FLOYD B. MAIBIE,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER S
DE-0752 -17-0030 -I-1
DE-0752 -17-0030 -C-1
DATE: December 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
J.R. Pritchett , McCammon, Idaho, for the appellant.
Michael R. Tita , Esquire, Sandy, Utah, 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 separate petition s for review of the initial decision,
which reversed his suspension on due process grounds , and the compliance initial
decision, which denied his subsequent petition for enforcement for failure to state
a claim. T he agency has filed a cross petition for review of 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
which reversed the appellant’s suspension . Generally, we grant petitions such as
these only in the foll owing circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrat ive judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or le gal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in th ese appeals, we JOIN them because doing
so will expedite processing without adversely affecting the interests of the
parties. 5 C.F. R. § 1201.36 (a)(2), (b). We conclude that neither party has
established any basis under section 1201.115 for granting the petition s or cross
petition for review. Therefore, we DENY the petition s for review and the cross
petition for review . Except as ex pressly MODIFIED to clarify the analysis of the
appellant’s age and disability discrimination claim s, we AFFIRM the initial
decision . We VACATE the compliance initial decision and DISMISS the
appellant’s petition for enforcement as premature.
BACKGROUND
¶2 The appellant is a preference -eligible Postal Service employee. Maibie v.
U.S. Postal Service , MSPB Docket No. DE -0752 -17-0030 -I-1, Initial Appeal File
(IAF), Tab 5 at 31, Tab 13 at 11 , Tab 15 at 1. As of November 2015, he was
employed as an Electronics Technician (ET) in Kalispell, Montana. IAF, Tab 13
at 11. In November 2015, t he agency notified him that his position was being
abolished . IAF, Tab 5 at 12, Tab 13 at 11. The agency offered him sev eral
placement options: (1) a carrier position in the Kalispell Post Office; (2) a
laborer custodian position in his current installation assignment; or (3) an ET
3
position in Auro ra, Colorado.2 Id. at 11, 13. The appellant chose the laborer
custodian po sition , but subsequently withdrew his bid for the custodial position
because , according to the appellant , he found that the duties were “ too physical
for him to perform.” IAF, Tab 5 at 17, Tab 13 at 13, Tab 15 at 1 . On
February 23, 2016, the agency notified the appellant of his reassignment to a city
carrier position , consistent with his second choice of assignment . IAF, Tab 5
at 27, Tab 13 at 11, Tab 15 at 27 . In association with that reassignment, the
appellant fil led out a Postal Service ( PS) Form 2485 -C, Medical Assessment
Questionnaire , on which the agency identified the functional requirements of the
city carrier position, e.g., heavy lifting (up to 70 pounds), and heavy carrying (up
to 45 pounds) . IAF, Tab 5 at 28 -29. T he appellant indicated on that form that he
had no medical limitations that could interfere with his ability to perform those
duties . Id. On the basis of the appellant’s PS Form 2485 -C, an agency
Occupational Health Nurse Administrator (OHNA) determined that the appellant
was suitable for reassignment with no identified physical restrictions or
limitations. IAF, Tab 13 at 14. At the time of his reassignment, t he appellant
was 73 years old. IAF, Tab 5 at 27.
¶3 The appellant attempted to perform the carr ier position, but he soon
discovered that he was physically unable to do so . Id. at 12, 17. The agency
subsequently allowed him to temporarily perform various duties within his
capabilities on an unofficial basis. Id. at 13 . The agency also referred him to the
District Reasonable Accommodation Committee (DRAC), which asked him to
prov ide information from his physician . Id. at 14 -15, 26. After receiving that
information, the DRAC determined that , due to medical restrictions limiting his
lifting to 15 pounds and his standing to 15 minutes, the appellant could not
perform the essential functions of his city carrier position with or without
accommodat ion. Id. at 14 -15. The appellant made a request for reconsideration
2 The options were made available pursuant to a settlement between the agency and th e
American Postal Workers Union. IAF, Tab 13 at 11.
4
to an agency Human Resources Manage r, asking that he be returned to the
temporary duties he was performing during the DRAC process. Id. at 12 -13. T he
Human Resources Manager denied his request because no reasonable
accommodation had been identified that would allow him to perform the esse ntial
functions of his position. Id. at 11 . As the administrative judge found in his
initial decision, hearing testimony indicated that the agency orally notified the
appellant i n September 2016 that it could not accommodate his disability and that
he should theref ore no longer report for work. IAF, Tab 41, Initial Decision (ID)
at 4; IAF, Tab 34 , Hearing Recording, Day 1 (testimony of the Officer in Charge
(OIC) of Kalispell Post Office) ; Tab 37, Hearing Recording , Day 2 (testimony of
the Human Resour ces Manager ). Nevertheless, the agency failed to issue a
formal n otice of the appellant’s placement on enforced leave until March 7, 2017 ,
after he filed this appeal. IAF, Tab 26 at 4-5. The agency subsequently issued a
decision letter placing the appel lant on enforced leave effective April 8, 201 7.
Maibie v. U.S. Postal Service , MSPB Dock et No. DE-0752 -17-0030 -C-1,
Compliance File (CF) , Tab 3 at 14.
¶4 The administrative judge found that the appellan t established that the Board
has chapter 75 jurisdiction over his suspension of longer than 14 days. ID at 4 -6.
Although he initially analyzed the appeal as a constructive suspension,
concluding under that rubric that the appellant made nonfrivolous allegations
sufficien t to entitle him to a hear ing, the administrative judge also gave the
appellant notice of the elements and burdens of establishing adverse action
jurisdiction based on an actual suspension exceeding 14 days. ID at 4 -5; IAF,
Tab 22 . Because the record showed that the agency direct ed the appellant not to
report for work, and that directive remained in effect for more than 14 days, the
administrative judge found that the appellant established by preponderant
evidence that th e agency subjected him to an actual suspension of more than
14 days. ID at 5-6. Because the agency did so without providing written notice
5
and an op portunity to be heard , the administrative judge issued an initial decision
revers ing the agency’s actio n on due process grounds . ID at 6-7, 17.
¶5 Concerning the appell ant’s affirmative defenses , the administrative judge
determined that the appellant failed to establish his age discrimination claim,
finding no direct or circumstantial evidence showing a discriminatory motive for
his placement on enforced leave. ID at 10 -12. The administrative judge similarly
found that the appellant failed to establish his claim of disability discrimination .
ID at 12 -15. He determined that the appellant was disabled because he had a
medical condition that substantially limited his major life ac tivities of lifting and
walking . ID at 12 -13. However, the administrative judge concluded that the
record did not show that the agency failed to provide the appellant with a
reasonable accommodation that would have allowed him to perfor m the essential
functions of the carrier position or a vacant, funded position . ID at 13 -15. The
administrative judge also found that th e appellant failed to identify any evidence,
either direct or circumstantial, demonstrating that disability discrimina tion was a
motivating factor in the agency’s decision to place him on e nforced leave. ID
at 15-17.
¶6 The appellant also alleged that his placement in the carrier craft was
inconsi stent with his rights under the Rehabilitation Act and a grievance
arbitrati on decision . He asserted that both the Act and the arbitration decision
required the agency to conduct a more thorough assessment of his ability to
perform the physical requirements of the carrier position prior to placement . IAF,
Tab 15 at 2. The admin istrative judge found it unnecessary to reach the
appellant’s claim arising from the arbitration decision. ID at 2 n.4. He did not
address the appellant’s cla im that under the Rehabilitation Act the agency was
required to conduct an individualized assess ment of whether the appellant was
able to perform in the carrier position.
¶7 In his petition for review, the appellant contests the administrative judge’s
findings regarding his affirmative defenses. Maibie v. U.S. Postal Service , MSPB
6
Docket No. DE -0752 -17-0030 -I-1, Petition for Review (PFR) File, Tab 1 at 4 -8.
The agency has responded to the appellant’s petition for review and filed a cross
petition for review urging the Board to issue a precedential decision clarifying the
distinction between enforced leave and a construct ive suspension. PFR File,
Tabs 2-3. The appellant has filed a reply to the agency’s response and also
responded to the agency’s cross petition for review . PFR File, Tabs 5, 7. He
moves t o dismiss the cross petition because the agency ha s allegedly failed to
provide interim relief . PFR File, Tab 7. The agency opposes the appellant’s
motion to dismiss. PFR File, Tabs 8 -9.
¶8 After filing the pe tition for review in his suspension appeal , the appellant
filed a petition for enforcement contending that the agency failed to restore him
to duty and provide back pay . CF, Tab 1. The agency responded in opposition to
the appellant ’s petition for enforcement. CF, Tab 3. The administrative judge
dismissed the appellant’s petition for enforcement for failure to state a claim .
CF, Tab 9 , Compliance Initial Decision (CID) at 1, 4. He reasoned that , in light
of the petition and cross petition for review in the suspension appeal, that initial
decisio n was not yet final and , under 5 U.S.C. § 7701 (b)(2)(C) , no back pay may
be required before a decision becomes final. CID at 2 -5.
¶9 In his petition for review of the compliance initial decision, the appellant
challenges the administrative judge’s observation that the agency argues he may
not have been ready, willing, and able to work during the period he claims he is
entitled to back p ay. Maibie v. U.S. Postal Service , MSPB Docket No. DE -0752 -
17-0030 -C-1, Compliance Petition for Review (CPFR) File, Tab 1 at 2. He also
reiterates some of his arguments regarding the underlying initial decision . Id.
The agency has responded in oppositi on to the compliance petition for review .
CPFR File, Tab 3.
7
DISCUSSION OF ARGUME NTS ON REVIEW
We deny the agency’s cross petition for review because the appellant established
Board jurisdiction over his suspension and the record reflects that the agency
denied him due process.
¶10 “The Board has jurisdiction over appeals only from the types of agency
actions specifically enumerated by law, rule, or regulation. ” Perez v. Merit
Systems Protection Board , 931 F.2d 853 , 855 (Fed. Cir. 1991). These appealable
actions include suspensions for more than 14 days. 5 U.S.C. § § 7512 (2), 7513(d) .
A “suspension” is the temporary placement of an employee in a nonpay, nonduty
status. 5 U.S.C. § 7501 (2). This definition covers not just unpaid absences but
also an agency’ s placement of an em ployee on sick or annual leave against his
will. Abbott v. U.S. Postal Service , 121 M.S.P.R. 294 , ¶ 6 (2014) . For
jurisdictional p urposes, whether the employee was able to perform his regular
duties is immaterial. Id. Rather, the only question is whether the employee ’s
placement in a leave status was voluntary or involuntary; only the latter is
appealable. Id.
¶11 The record reflects that the appellant’s placement on leave was involuntary
and we agree with the administrative judge that the appellant established
jurisdiction over an actual suspension of longer than 14 days . Id., ¶ 9; ID at 4-6.
The agency took affirmative ste ps to instruct the appellant not to report to work.
A constructive suspension, by contrast, arises when an absence that appears
voluntary actually is not. Abbott , 121 M.S.P.R. 294 , ¶ 7. Citing precedential and
nonprecedential decisions of the Board and the U.S. Court of Appeals for the
Federal Circuit, the agency argues that the Board should clari fy its case law to
find that an empl oyee ’s absence for me dical reasons always should be reviewed
as a potential constructive suspension . We are not persuaded. To the extent that
the agency cites nonprecedential decision s, such decisions have no precedential
value. 5 C.F.R. § 1201.117 (c)(2) ; see also Morris v. Department of the Navy ,
123 M.S.P.R. 662, ¶ 13 n.9 (2016) (explaining that the Board may follow a
8
nonprecedential decision of the Federal Circuit when it finds its reasoning
persuasive ).
¶12 The only precedential decision cited by the agency is Thomas v. Department
of the Navy , 123 M.S.P.R. 628 (2016) , which the agency argues is inconsistent
with prior case law suggesting that the constructive suspension and actual
suspension claims are mutually exclusive. PFR File, Tab 7 at 16 -19. In Thomas ,
the Board analyzed the appellant’s absence as an alleged constructive suspension,
and remanded the appeal for a juri sdictional hearing on that claim. 123 M.S.P.R.
628, ¶¶ 9, 14 -16. The Board instructed that on remand , if the appellant did not
establish her constructive suspensi on claim, the administrative judge should
consider her claim that her absence was an actual suspension . Id., ¶ 17. We do
not agree with the agency’s characterization of the Board’s decision as suggesting
that an employee ’s absence can be both an actual a nd a constructive suspension .
PFR File, Tab 3 at 19. Rather, the Boar d was fulfilling its obligation to
determine whether it has jurisdiction over a particular appeal by considering
jurisdiction under either theory . See Parrish v. Merit Systems Protecti on Board ,
485 F.3d 1359 , 1363 -64 (Fed. Cir. 2007) (discussing the Board’s obligation to
determine its jurisdiction over an agency action ) (citation omitted) . Thus , we
deny the agency’s cross petition for review.
¶13 The parties do not dispute the administrative judge’s finding that the agency
did not provide the app ellant with notice and an opportunity to respond prior to
suspending him. ID at 6 -7. Thus, we discern no basis to disturb the
administrative judge ’s decision that the agency violated the appellant’s right to
due process , requir ing reversal of the suspension. ID at 6 -7; see Martin v. U.S.
Postal Service , 123 M.S.P.R. 189, ¶ 11 (2016) (observing that an agency action
9
suspending an employee must be reversed if the agency implemented the
suspension without provi ding the appellant with a hearing of any kind) .3
The appellant failed to establish his affirmative defenses.
¶14 Conce rning the appellant’s affirmative defenses, we also agree with the
administrative judge that the appellan t failed to establish his claim of age
discrimination. ID at 7 -12. The administrative judge found that the record lacked
any direct or circumstantial ev idence of age discrimination . ID at 10. On the
basis of testimony that he found was unequivocal, specific, detailed, and
internally consistent, the administrative judge found that the OHNA , who was
also the chairman of the DRAC, and the OIC, who instructed the appellant not to
return to work, were both unaware of the appellant’s age . ID at 10 -11. He found
nothing in their testimony to suggest that they were motivated by discriminatory
animus or that the decision to place the appellant on enforced leave was pretext
for age discrimination . Id. The administrative judge determined that , despite the
fact that the Human Resources Directo r knew the appellant’s age , his decision to
uphold the DRAC finding was not based on age, but instead on the conclusion
that the agency could not reas onably accommodate the appellant . ID at 11 -12.
¶15 As the administrative judge observed, an appellant alleg ing age
discrimination must prove that such discrimination was a motivating factor in the
agency’s employment decision. ID at 7 -8; Pridgen v. Office of Management &
Budget , 2022 MSPB 31 , ¶ 21 (citing Babb v. Wilkie , 140 S. Ct. 1168 , 1173 -74
(2020) ). In proving his claim , an appellant may rely on direct or circumstantial
evidence, or some combination of the two. Pridgen , 2022 MSPB 31 , ¶¶ 23 -24
3 To the extent that the appellant continues to argue that the agency violated an
arbitration decision in connection with his placement in a carrier position , we decline to
reach th at issue. PFR File, Tab 1 at 7; IAF, Tab 15 at 87 -100, Tab 22 at 4; ID at 2 n.1.
Because the administrative judge properly reversed the appellant’s suspension on due
process grounds, it is unnecessary for us to determine whether the agency committed
harmful error. See Thome v. Department of Homeland Security , 122 M.S.P.R. 315 , ¶ 22
n.5 (2015) ( declining to reach a harmful error question in light of a finding that an
agency violated an appellant’s due process rights).
10
(citations omitted). Here, the administrative judge properly considered all of the
relevant evidence . ID at 8 -12. The appellant disputes the administrative judge’s
credibility -based finding that the OHNA was unaware of the appellant’s age ,
describin g it as “difficult to believe.” PFR File, Tab 1 at 5. Nevertheless, the
appellant identifies nothing to discredit the testimony . Id.; see Haebe v.
Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) (explaining that the
Board generally must defer to an administrative judge’ s credibility determinations
when they are base d, explicitly or implicitly, on observing the demeanor of
witnesses testifying at a hearing ). He further argues that because the Postmaster
and an agency staffing specialist were aware of the appellant’s age, they had a
responsibility to report to others, including the OHNA , “that the appellant’s age
could adversely affect his ability to perform” the duties of the carrier position.
PFR File, Tab 1 at 5. We disagree with the appellant’s assertion that the agency
should have considered his age as suggestin g that he lacked the physical ability to
perform the duties of the carrier position. Because the administrative judge
properly considered the documentary and testimonial evidence , see Pridgen ,
2022 MSPB 31 , ¶ 24 , and the appellant has identified no reason on review to
upset his conclusions, we affirm the conclusion that the appellant did not prove
his age discrimination claim.
¶16 Concerning the appellant’s disability discrimination claim, neither party
disputes the administrative judge’s finding that the appellant was an individual
with a disability.4 ID at 12 -13. We see no basis to disturb this finding. IAF,
Tab 5 at 15, 24, 26. The administrative judge also found that the appellant failed
4 The administrative j udge properly adjudicated the appellant’s disability discrimination
claim under the regulatory standards for the Americans with Disabilities Amendments
Act, which has been incorporated by reference into the Rehabilitation Act. Sanders v.
Social Security A dministration , 114 M.S.P.R. 487 , ¶¶ 16-19 (2010 ).
11
to establish his claim of status -based disability discrimination. ID at 15 -17. The
appellant does not challenge this finding on r eview, and we decline to disturb it.5
¶17 In regards to the appellant’s failure to accommodate claim, he argues that
the agency conducted a “faux” interactive process in determining that it could not
reasonably accommodate him in the carrier position. PFR F ile, Tab 1 at 6. The
administrative judge discussed the agency’s DRAC process and he agreed with
the agency’s determination that there was no reasonable accommodation that
would have allowed the appellant to perform the essential duties of the carrier
position, or any other vacant, funded position .6 ID at 3, 14 -15. The appellant
identifies nothing in his petition for review that would indicate that the agency
participated in the interactive process in bad faith. See Collins v. U.S. Postal
Service , 100 M.S.P.R. 332 , ¶¶ 10-11 (2005) ( finding that both parties should
engage in an interactive process in good faith to determine what actions might
constitute a reasonable accommodation of an employee’ s disability ).
5 Since the initial decision was issued in this matter, we issued our decision in Pridgen ,
2022 MSPB 31 . In Pridgen , we clarified the burdens of proof regarding disparate
treatment , age, Title VII, and disability discrimination claims . 2022 MSPB 31 ,
¶¶ 20-22, 42. In particular, we explained that an appell ant may obtain “forward -looking
relief ” in connection with such claims if he proves discrimination was a motivating
factor in the agency’s decision ; however to obtain status quo ante relief, he “must show
that . . . discrimination was a but -for cause of th e employment outcome.” Id. (quoting
Babb , 140 S. Ct. at 1177 -78). We have considered whether our holdings in Pridgen
impact the administrative judge’s findings here, and conclude that they do not. In
particular, although the administrative judge incorre ctly stated that the agency had the
burden of proving that it would have taken the same action absent a discriminatory
motive, i.e., that the agency had the burden of disproving but -for causation, he properly
found that the appellant failed to prove discri mination was a motivating factor in his
suspension . ID at 7 -12, 15-17. Thus, the administrative judge never reached the issue
of whether discrimination was a “but-for” cause of the suspension , and we see no
reason to do so here . See Pridgen , 2022 MSPB 31 , ¶ 48 (recognizing that a motivating
factor standard is a lower burden of proving causation than a “but-for” standar d).
6 The appellant does not challenge the administrative judge’s finding that the agency
searched for, but was unable to locate a vacant, funded position that the appellant could
perform within his medical restrictions, even with a reasonable accommodatio n. ID
at 15.
12
¶18 Pursuant to the terms of a grievance settlement with the union, the agency
offered the appellant several placement options, and he selected a custodial
position in his current installation .7 IAF, Tab 13 at 11. The record does not
reflect that the appellant notified the agency why he subsequently withdrew his
bid for the custodial position, id. at 13, or that he previously had ever requested
light duty due to any physical restrictions, and he asserts on review that he was
able to manage his chronic back condition when performing ET duties, PFR File,
Tab 1 at 6. When the appellant withdrew his bid for the custodial position , the
agency placed him in his sec ond preferred option, a carrier position . IAF, Tab 13
at 11. The agency had the appellant execute a PS Form 2485 -C, on which the
agency apprised him of the physical requirements of the carrier position, and he
certified to the agency that he had no physical condition or limitation that could
interfere with his ability to perform those duties . IAF, Tab 5 at 28 -29. Thus, the
record does not show that the agency had any reason to believe that the appellant
could not perform the duties of the carrier p osition before his reassignment .
¶19 The appellant argues that the agency violated the Rehabilitation Act by
failing to determine whether he posed a “direct threat, ” i.e., a significant risk of
substantial harm to himself or others, before placing him in the carrier position.
PFR File, Tab 1 at 7 ; see Rosario -Fabregas v. Department of the Army ,
122 M.S.P.R. 468 , ¶ 14 (2015) (explaining that an agency may only inquire as to
the severity of an employee’s disability if it has a reasonable belief that the
disability causes him to pose a direct threat) , aff’d , 833 F.3d 1342 (Fed. Cir.
2016) . Although the administrative judge did not address this claim below, we
find any error harmless. See Karapinka v. Department of Energy , 6 M.S.P.R.
124, 127 (1981) (explaining that an administrative judge’s procedural error is of
7 The appellant does not assert that the agency either failed to follow the dictates of the
pertinent settlement or that the settlement, which does not appear to be part of the
record, either provided or should have provided him with any em ployment options other
than those that the agency offered him. IAF, Tab 5 at 28 -29.
13
no legal consequence unless it is shown to have adve rsely affected a party’s
substantive rights) . While an agency only may conduct an examination if it
believes an employee poses a direct threat, it is not required to do so. In fact, the
direct threat is a narrow exception to the general prohibition on an employer
requiring employees to undergo me dical exams or respond to medical inquiries .
42 U.S.C. § 12112 (d)(1) -(2); 29 C.F.R . §§ 1630.2 (r), .13(b), .14(c). Thus, we
find that the agency did not violation the Rehabilitation Act by failing to conduct
a more exhaustive examination of the appellant’s physical ability to perform in
the carrier position.
The administrative judge should have dismissed the appellant’s petition for
enforcement as premature .
¶20 The appellant contended in his compliance petition for enforcement that the
agency had failed to provide him with back pay. CF, Tab 1. The administrative
judge dismissed the appe llant’s petition for enforcement for failure to state a
claim because the initial decision was not final and, under those circumstances,
5 U.S.C. § 7701 (b)(2)(C) prohibits an award of back pay. CID at 5 -6. The
appellant renews hi s argument in his compliance petition for review. CPFR File,
Tab 1. He also moves to dismiss the agency’s cross petition for review of the
initial decision on the basis that t he agency did not restore him to duty or pay him
back pay. PFR File, Tab 7 at 4 -7.
¶21 An agency is not required to pay an award of back pay before a decision is
final. Hall v. Department of the Interior , 90 M.S.P.R. 32 , ¶ 9 (2001) (citing
5 U.S.C. § 7701 (b)(2)(C)); 5 C.F.R. § 1201.116 (f). Therefore, we agree with the
administrative judge that the appellant was not entitled to such pay. Because t he
appellant filed a petition for review of the initial decision in his suspension
appeal , that decision was not a final order, and the administrative judge should
have dismissed the petition for enforcement of that initial decision as premature.
See Walker v. Department of Health & Human Services , 99 M.S.P.R. 367 , ¶ 8
(2005) (finding that a petition for enforcement was premature because the initial
14
decision at issue had not yet become final ); Thomas v. U.S. Postal Service ,
65 M.S.P.R. 268 , 271 n. * (19 94) ( finding that because the appellant had filed a
petition for review of the initial decision at issue , the administrative judge should
have dismissed the petition for enforcement of that initial decision as premature ).
In any event, we find that the administrative judge was correct to dismiss the
petition for enforcement .
¶22 In his compliance petition for r eview, t he appellant also challenges the
administrative judge’s observation that the agency opposes the appellant’s back
pay claim because he may not have been ready, willing, and able to wor k during
the period of back pay. PFR File, Tab 1 at 2; CID at 3 n.2. However, the
administrative judge made no finding as to the agency’s argument, and therefore
there is no finding to review . Both in his compliance petition for review and in
his motion to dismiss the petition for review, the appellant argues that th e agency
has failed to restore him to duty, and failed to certify its compliance with the
interim relief order. ID at 18 ; PFR F ile, Tab 7 at 4 -6; CPFR File, Tab 1 at 1 -2.
¶23 The agency placed the appellant on enforce d leave, effective April 8, 2017 ,
which wa s around 2 weeks after the first day of the hearing and approximately
1 month prior to the issuance of the initial decision reversing his suspension.
IAF, Tab 26 at 4-5; CF, Tab 3 at 14 -15; ID at 1 . The appellant did not file an
appeal from that action. We decline to find that the agency violated the order of
interim relief by failing to return the appellant to duty under these circumstances .
See Rothwell v. U.S. Postal Service , 68 M.S.P.R. 466 , 468 (1995) (finding that an
interim relief order does not insulate an appellant from a subsequent adverse
action so long a s that action is not inconsistent with the initial decision ).
¶24 We also decline to dismiss the agency’s cross petition for review based on
its admitted failure to provide the required certification of compliance with
interim relief. See 5 C.F.R. § 1201.116 (a), (e) (permitting the Board to dismiss
an agency’s cross petition for review for failure to include a certification that it
has complied with the interim relief order); PFR File, Tab 9. Given that we have
15
denied the agency’s cross petition for review on the merits, as discussed above,
we decline to exercise our discretionary authority to dismiss the cross petition for
review. See Thome v. Department of Homeland Security , 122 M.S.P.R. 315 , ¶ 16
(2015) (explaining that the Board’s authority to dismiss an agency’s petition for
review is discretionary).
¶25 If the agenc y fails to comply with the order below, the appellant may file a
new petition for enforcement consistent with the instructions below.
¶26 Accordingly, we affirm as modified the initial decision reversing the
agency’s suspension of the appellant and we dismiss the appellant’s compliance
appeal as premature .
ORDER
¶27 We ORDER the agency to cancel the suspension and retroactively restore
the appellant effective September 15, 2016. See Kerr v. National Endowment for
the Arts , 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
¶28 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Back Pay Act and/or Postal
Service regulations, as appropriate, no later than 60 calendar days after the date
of this decision. We ORDER the appellant to cooperate in good faith in the
agency’s efforts to calculate the amount of back pay, interest, and benefits due,
and to provide all necessary information the agency requests to help it carry out
the Board’s Order. If there is a dispute about the amount of back pay, interes t
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.
¶29 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has ful ly carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181 (b).
16
¶30 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
¶31 For agencies whose payroll is administered by either the National Financ e
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.
NOTIC E TO THE APPELLANT R EGARDING
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 f ile 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.
17
NOTICE OF APPEAL RIG HTS8
You may obtain r eview of this final decision in MSPB Docket No. DE -
0752 -17-0030 -C-1. 5 U.S.C. § 7703 (a)(1) . The initial decision in MSPB Docket
No. DE -0752 -17-0030 -I-1, as supplemented by this Final Order, const itute s the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision in MSPB Docket No. DE -0752 -17-0030 -I-1.
5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time
limit for seeking such review and 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 sta tement of how courts will rule regarding which cases
fall within their jurisdiction. If you wish to seek review of this final decision,
you should immediately review the law applicable to your claims and carefully
follow all filing time limits and require ments. Failure to file within the
applicable time limit may result in the dismissal of your case by your chosen
forum.
Please read carefully each of the 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
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the not ice, the
Board cannot advise which option is most appropriate in any matter.
18
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants, ” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.m spb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept represe ntation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that 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
19
you 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) a nd 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you re ceive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
20
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017 . The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Ci rcuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
21
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 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 docum ents/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 Lea ve 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. Th e payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
2
NATIONAL FINANCE CENTER CHECK LIST FOR BACK PAY CA SES
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 Boa rd, 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 soc ial 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. | MAIBIE_FLOYD_B_DE_0752_17_0030_I_1_FINAL_ORDER_1987874.pdf | 2022-12-21 | null | S | NP |
3,856 | https://www.mspb.gov/decisions/nonprecedential/ALLEN_ZACKERY_DE_1221_18_0117_W_1_FINAL_ORDER_1987972.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ZACKERY ALLEN,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
DE-1221 -18-0117 -W-1
DE-0752 -18-0178 -I-1
DATE: December 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
C. Jaye Mills , Esqui re, and Marisa L. Williams , Esquire, Englewood,
Colorado, for the appellant.
Debbie Stevens , 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 petition s for review of the initial decision, which
granted in part his request for corrective action in his individual right of action
1 A nonprecedential order is one that the Board has determined does not add
significantly to the b ody 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 is sued as an Opinion and Order 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 and sustained his 30-day suspension in his adverse action 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 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 ).
¶2 On August 23, 2019, the appellant filed identical petitions for review of the
initial decision in his IRA and adverse action appe als. Allen v. Department of
Justice , MSPB Docket No. DE -1221 -18-0117 -W-1, Petition for Review (PFR)
File, Tab 1.2 In his petitions, the appellant summarily contends without
explanation that the initial decision contains erroneous findings of material fac t
and is based on an erroneous interpretation of statutes and regulations. PFR File,
Tab 1 at 4. Regarding his IRA appeal, the appellant states that he accepts the
findings in the initial decision in his favor but requests that the Board reverse the
findings that were not in his favor. Id. Regarding his adverse action appeal, the
appellant requests that the Board reverse the initial decision. Id.
¶3 After fully considering the filings in th ese appeal s, we conclude that the
petitioner has not established any basis under section 1201.115 for g ranting the
petition s for review. The appellant’s cursory petition s lack sufficient specificity
to enable the Board to ascertain whether there is a serious evidentiary challenge
to the initial decision, justifying a complete review of the record s. See Baney v.
Department of Justice , 109 M.S.P.R. 242 , ¶ 7 (2008); Tines v. Department of the
2 The Clerk of the Board joined the appellant’s IRA and adverse action appeals f or
processing on petition for review. PFR File, Tab 2.
3
Air Force , 56 M.S.P.R. 90 , 92 (1992); 5 C.F.R. § 1201.115 (a)(2) , (b) (stating that
a petitioner who alleges that the judge made erroneous findings of material fact
must explain why the challenged factual determination is incorrect and identify
specific evidence in the reco rd that demonstrates the error and a petitioner w ho
alleges that the i nitial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law t o the facts of the case must
explain how the error a ffected the outcome of the case). 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).
ORDER
¶4 We ORDER the agency to restore the appellant to hi s Supervis ory
Correctional Officer position, effective January 19, 2017, rescind the notice of
temporary reassign ment , dated January 18, 2017 , and eliminate all copies and
references to it from agency records. See Kerr v. National Endowment for the
Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
¶5 We 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, if appropriate, no later than 60 calendar days after the
date of this decision. We ORDER the appellant to cooper ate 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.
¶6 We further ORDER the agency to tell the appellant promptly in writing
when it believe s it has fully carried out the Board’s Order and of the actions it has
4
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).
¶7 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if t he 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).
¶8 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) o r 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 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.
5
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T CONSEQUENTIAL AND/ OR
COMPENSATOR Y 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 m ay 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 investigati on or for any related activity without the
approval of the Special Counsel.” 5 U.S.C. § 1214 (f).
6
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
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:
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. Meri t Systems
Protection Board , 582 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, nationa l 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 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 request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your represent ative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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:
Offic e of Federal 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 2302( b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 petiti on 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 Circui t, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is av ailable at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in se curing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants befo re the Federal Circuit. The
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 jurisd iction 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 access through the link 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 a s 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 cancel ed). ***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 S um 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 receiv ed. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit
Systems Prote ction Board, EEOC, and courts . Initiate and submit AD -343 (Payroll/Action Request) with
clear and concise information describing what to do in accordance with decision.
1. 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 attache d.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected
(if applicable).
Attachments to AD -343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium,
etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of the type of
leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave to
be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and required
data in 1 -7 above.
The following information must be in cluded 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 tax able or non -taxable.
If you have any questions or require clarification on the above, please contact NFC’s Payroll/Personnel
Operations at 504 -255-4630. | ALLEN_ZACKERY_DE_1221_18_0117_W_1_FINAL_ORDER_1987972.pdf | 2022-12-21 | null | DE-1221 | NP |
3,857 | https://www.mspb.gov/decisions/nonprecedential/ROGERS_JIMMIE_H_DE_0432_14_0637_C_1_REMAND_ORDER_1987979.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JIMMIE H. ROGERS,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER S
DE-0432 -14-0637 -C-1
DE-0432 -14-0352 -C-1
DATE: December 21, 2022
THIS ORDER IS NONPRECEDENTIAL*
Jimmie H. Rogers , Fountain, Colorado, pro se.
Melissa Lynn Binte Lolotai , Denver, Colorado, 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 compliance initial
decision, which denied his petition for enforcement. For the reasons discussed
below, we GRANT the appellant’s petition for review and REMAND the case to
the field office for further adjudication in accordance with this Remand Order.
* A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
BACKGROUND
¶2 The parties settled the appellant’s joined appeals : MSPB D ocket
Nos. DE-0432 -14-0637 -I-1 and DE-0432 -14-0352 -I-1. Rogers v. Department of
Veterans Affairs , MSPB Docket No . DE-0432 -14-0352 -I-1, Initial Appeal File
(IAF), Tab 29, Initial D ecision . The initial decision dismissing the appeals as
settled became the Board’s final decision after n either party filed a petition for
review. 5 C.F.R. § 1201.113 . The appellant filed a petition to enforce the
parties’ settlement agreement on May 1, 2015, in which he argued that the agency
had b reached its obligations to allow him to inspect his Official Personnel File
and to remove documents concerning the rescinded personnel action s from it.
Rogers v. Department of Veterans Affairs , MSPB Docket No. DE-0432-14-0637 -
C-1, Compliance File (CF), Tab 1. He also contended that the agency was trying
to collect a debt from him, despite having waived all pending and potential claims
in the parties’ agreement. Id.
¶3 In response to the administrative judge’s close -of-record order, the
appellant further alleged that an employer had contacted him to report that ,
despite having called the correct telephone number and speaking with the
individual designated in the parties’ settlement agreement to respond to any
employment inquiries, the designated individual did not provide the information
agreed upon in the settlement. CF, Tab 14. The administrative judge issued a
show cause order instructing the appellant to file a declaration from the “unnamed
employer” that “should be very specific about wh o the declarant is, when the
conversation occurred with the unnamed agency employee . . . and details of the
conversation between the declarant and the unnamed agency employee.” CF,
Tab 18 at 2 . In respo nse, the appellant submitted a declaration from the unnamed
employer, M.K., in which M.K. averred that “I called [the designated individual ]
. . . on or about August 7 , 2015. She said that she had no information about [the
appellant ], but she h as 3,500 employees to try to keep track of. She said to call a
[different individual] at [a different telephone number] .” CF, Tab 19 at 2.
3
¶4 In her compliance initial decision, the administrative judge denied the
appellant’s petition for enforcement, fin ding that the appellant failed to make a
nonfrivolous allegation that the agency breached the pa rties’ agreement in any
way. CF, Tab 30, Compliance Initial Decision (CID). In pertinent part, she
found that he failed to nonfrivolously allege a breach of t he employment inquiries
provision because M.K.’s declaration “failed to identify who [M.K.] was and
whether he was a prospective employer conducting a reference check.” CID at 4.
¶5 The appellant, who is pro se in this matter, argues in his petition for re view
that he followed the administrative judge’s order “to the letter,” contending that
the administrative judge’s statements indicate that she already knew that M.K.
was an employer. Rogers v. Department of Veterans Affairs , MSPB Docket
No. DE-0432 -14-0637-C-1, Compliance Petition for Review (CPFR) File , Tab 1.
The agency responds in opposition to the appellant’s petition for review. CPFR
File, Tab 4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 The Board has authority to enforce a settlement agreement that has been
entered into the record for enforcement purposes in the same manner as any final
Board decision or order. E.g., 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 accorda nce
with contract law. Id. When an appellant alleges noncompliance with a
settlement agreement, the agency must produce relevant, material, and credible
evidence of its compliance with the agreement. Id. The ultimate burden,
however, remains with the a ppellant, as the party seeking enforcement, to prove
breach by a preponderance of the evidence. Id.
4
The appellant nonfrivolously alleged that the agency failed to comply with the
parties’ agreement.
¶7 In rejecting the declaration the appellant submitted i n support of his
allegation that the agency breached the parties’ agreement , the administrative
judge cited the appellant’s failure to “identify who [M.K.] was and whether he
was a prospective employer conducting a reference check.” CID at 4. However,
her order did not instruct the appellant to state whether the declarant was a
prospective employer and, by “who [M.K.] was,” we presume that the
administrative judge meant for the declarant to identify the employer on whose
behalf M.K. made his inquiry , but she did not explain her intent either in the
compliance initial decision or in the show cause order to which the appellant
responded . Id.; CF, Tab 18 at 2. Under these circumstances , we agree with the
appellant that M .K.’s declaration meets the letter of the administrative judge’s
order. CPFR File, Tab 1 at 1; CF, Tabs 18 -19.
¶8 Further, t he parties’ agreement required the appellant to direct any
employment inquir ies to a particular designated individual. IAF, Tab 28 at 4 -5;
CF, Tabs 14, 19 . The agreem ent further required that, for a period of 2 years
following the agreement, if that individual or her designee received an
employment inquiry regarding the appellant, she would provide the dates of his
service, his rate of pay, a description of his duties , and that he resigned for
personal reasons. IAF, Tab 28 at 5. In his unrebutted declaration, M .K. averred
that the designated individual responded by stating that she had no information
about the appellant and referring him to someone else. CF, Tab 19 a t 2. We find
that the appellant’s allegations constitute nonfrivolous allegations that the agency
breached the provision of the agreement pertaining to employment inquiries . See,
e.g., Miller v. Department of Health & Human Services , 41 M.S.P.R. 385, 386 -88,
391-92 (1989) (finding breach when an individual other than the one identified in
the agreement provided a negativ e reference to the appellant’s prospective
employer). Accordingly , we must remand this petition for enforcement to the
5
field office for the agency to produce relevant, material, and credible evidence of
its compliance with the parties’ settlement agreemen t, and for the administrative
judge to determine whether the appellant established by preponderant evidence
that the agency breached th e parties’ agreement . Vance , 114 M.S.P.R. 679 , ¶ 6.
ORDER
¶9 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 | ROGERS_JIMMIE_H_DE_0432_14_0637_C_1_REMAND_ORDER_1987979.pdf | 2022-12-21 | null | S | NP |
3,858 | https://www.mspb.gov/decisions/nonprecedential/KAMA_KIRK_K_SF_0752_22_0249_I_1_FINAL_ORDER_1987995.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KIRK K. KAMA ,
Appellant,
v.
DEPARTMENT OF THE NAVY ,
Agency.
DOCKET NUMBER
SF-0752 -22-0249 -I-1
DATE: December 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shawn A. Luiz , Esquire, Honolulu, Hawaii, for the appellant.
Ellen Johnston , Washington Navy Yard, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 After issuance of the June 24, 2022 initial decision in this appeal, the
parties notified the Board that they had settled the appeal. Initial Appeal File,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 prcedential
decision issued as an Opinion and Order has been identified by the Board as
significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 .
2
Tab 25 , Initial Decision ; Petition for Review (PFR) File, Tab 1 .2 The agency
requested that the in itial decision be vacated, and the appellant joined that
request.3 PFR File, Tabs 1 , 4. For the reasons set forth below, we REOPEN the
appeal pursuant to 5 C.F.R. § 1201.118 , VACATE th e initial decision, and
DISMISS the appeal as settled.
¶2 The settlement agreement was signed and dated August 4, 2022 , and
provides, in pertinent part, for the withdrawal of the appellant’s claims . PFR
File, Tab 1 at 5, 10 .
¶3 Before dismissing a matter as se ttled, 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 Se rvice , 37 M.S.P.R. 146 ,
149 (1988) . In addition, before accepting a settlement agreement into the record
for enforcement purposes, the Board must determine whether the agreement is
lawful on its face and whether the parties freely entered into it. See Massey v.
Office of Personnel Manage ment , 91 M.S.P.R. 289 , ¶ 4 (2002), overruled on
other grounds by Delorme v. Department of the Interior , 124 M.S.P.R. 123 ,
¶¶ 11-21 (2017) (holding that the Board may enforce settlement agreements that
have been entered into the record, independent of a ny prior finding of Board
jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and agree that the agreement will not be entered into the
record for enforcem ent by the Board. PFR File, Tab 1 at 7 (providing for
enforcement under the regulations of the Equal Employment Opportunity
2 As the initial decision had already been issued and become final by the time the
parties notified the Board of their settlement agreement, the submission was considered
and docketed as a petition for review of the initi al decision. PFR File, Tab 2.
3 Because we are reopening the appeal to vacate the initia l decision, as requested by
both parties, the nunc pro tunc motion filed by the appellant, PFR File, Tab 5, is moot.
3
Commission) . As the parties do not intend for the Board to enforce the terms of
the settlement agreement, we need not address the additional considerations
regarding enforcement, and we do not enter the settlement agreement into the
record for enforcement.
¶5 Accordingly, we vacate the June 24, 2022 initial decision and dismiss the
appeal with prejudice to refiling (i.e., the parties n ormally may not refile this
appeal). This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R .
§ 1201.113 ).
NOTICE OF APPEAL RIG 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 le gal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
5 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 | KAMA_KIRK_K_SF_0752_22_0249_I_1_FINAL_ORDER_1987995.pdf | 2022-12-21 | null | SF-0752 | NP |
3,859 | https://www.mspb.gov/decisions/nonprecedential/HORNEMAN_DOUGLAS_DE_4324_15_0102_X_1_FINAL_ORDER_1988003.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DOUGLAS HORNEMAN,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DE-4324 -15-0102 -X-1
DATE: December 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael W. Macomber , Esquire, Albany, New York, for the appellant.
Alfred Steinmetz , Esquire, Phoenix, Arizona, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 This case is before the Board on the appellant’s petit ion to enforce the
parties’ settlement agreement resolving his appeal under the Uniformed Services
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
Employment and Reemployment Rights Act . For the reasons discussed below, we
now find the agency in compliance and DISMISS the petition for enforcement.
We also FORWARD the appellant’s motion for attorney fees and litigation
expenses to the Denver Field Office for adjudication under 5 C.F.R. § 1201.203 .
DISCUSSIONS OF ARGUM ENTS AND EVIDENCE ON REVIEW
¶2 On April 13, 2018, the Board directed the agency to provide evidence
showing that it properly calculated and compensated the appellant for back pay
and interest on back pay, as well as information regarding the appellant’s
retirement earnings. Horneman v. Department of Veterans Affairs , MSPB Docket
No. DE -4324 -15-0102 -X-1, Compliance Referral File (CRF), Tab 5. In response,
the agency produced spreadsheets from the Defense Finance and Accounting
Services showing the back pay calculations by pay period, id. at 45 -144, as well
as a back pay computation summary report from the Office of Personnel
Management’s Back Pay Calculator, id. at 146 -69. In addition, the agency’s
Chief Finance Officer at the Phoenix Veterans Affairs Health Care System
provi ded a declaration in which he explained the abbreviations and codes on the
spreadsheets and summary report. Id. at 5-11. He specifically addressed the
appellant’s retirement deductions and Thrift Savings Plan withholdings. Id.
at 10-11.
¶3 On July 24, 20 18, the appellant submitted a pleading in which he stated that
he was “satisfied that the agency has finally provided information as to how the
amount of pay and interest was calculated and whether the Agency has corrected
[the appellant’s] earning records for purposes of calculation of his retirement
contribution.” CRF, Tab 7 at 7.
¶4 In light of the agency’s response and the appellant’s stated satisfaction with
the agency’s compliance, we find the agency in compliance and dismiss the
petition for enforceme nt. This is the final decision of the Merit Systems
3
Protection Board in this compliance proceeding. Title 5 of the Code of Federal
Regulations, section 1201.183(c)(1) ( 5 C.F.R. § 1201.1 83(c)(1)).
¶5 We further forward the appellant’s motion for attorney fees and litigation
expenses to the Denver Field Office for adjudication.2
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file y our motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
2 In the October 17, 2017 compliance initial decision granting the appellant’s petition
for enforcement, the administrative judge informed the appellant that, if no petition for
review was filed, he could request attorney fees by filing a motion with the De nver
Field Office as soon as possible but no later than 60 days after the date the initial
decision became final, i.e., November 24, 2017. Horneman v. Department of Veterans
Affairs , MSPB Docket No. DE -4324 -15-0102 -C-1, Compliance File, Tab 25,
Compliance Initial Decision at 15, 19. On January 23, 2018, the appellant filed, in this
compliance referral file, MSPB Docket No. DE -4324 -15-0102 -X-1, a motion for
attorney fees and litigation expenses incurred in the compliance proceeding. CRF,
Tab 4. In additi on, on July 24, 2018, he filed, again in the compliance referral file, a
“Renewed Motion” for attorney fees and litigation expenses. CRF, Tab 7. As the
appellant’s request for attorney fees and litigation expenses arise from the compliance
proceeding adj udicated by the administrative judge in the Denver Field Office, the
motion for attorney fees must be filed with the Denver Field Office, not with the Board.
See 5 C.F.R. § 1201.203 (c). Accordingly, we forward the appellant’s January 23, 2018
request for attorney fees and litigation expenses and his July 24, 2018 renewed request
to the Denver Field Office for processing under 5 C.F.R. § 1201.203 .
4
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following 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 f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit , you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, 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 appro priate 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). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in th is case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it mu st be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option appli es to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
7
disposition of allegations of a prohibited personne l practice described in
section 2302 (b) other than practices d escribed in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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 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 t he Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protecti on Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 P resident 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 competen t jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
Contact information for the courts of appeals can be found at the ir
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HORNEMAN_DOUGLAS_DE_4324_15_0102_X_1_FINAL_ORDER_1988003.pdf | 2022-12-21 | null | DE-4324 | NP |
3,860 | https://www.mspb.gov/decisions/nonprecedential/CHRISTIANS_TODD_B_DA_0432_18_0454_I_1_FINAL_ORDER_1988023.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TODD B. CHRISTIANS,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DA-0432 -18-0454 -I-1
DATE: December 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Todd B. Christians , Dallas, Texas, pro se.
David R. Gallagher , Esquire, Fort Belvoir, Virginia, 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 May 30, 2019 initial decision
in this appeal. Petition for Review (PFR) File, Tab 1; Initial Appeal File, Tab 36,
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, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant on
November 10, 2022, and by the agency on November 15, 2022 . PFR File, Tab 4
at 6. The document provides, among other t hings , that the appellant would
withdraw his MSPB appeal . Id. at 4.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to ha ve 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 Manageme nt, 91 M.S.P.R. 289 , ¶ 4 (2002), overruled on
other grounds by Delorme v. Department of the Interior , 124 M.S.P.R. 123 ,
¶¶ 11-21 (2017) (holding that the Board may enforce settlement agreements that
have been entered into the record, independent of any prior finding of Board
jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and agree that the agreement will be entered into the record
for enforcement by the Board. See PFR File, Tab 4 at 5. In addition, we find that
the agreement is lawful on its face and that the parties freely entered into it.
Accordingly, we find that dismissal of the appeal “with prejudice to refiling”
(i.e., the parties normally may not refile this appeal) is appropriate under these
circumstances, and we accept the settlement agreement into the record for
enforcement purposes .
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. 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 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 fin al decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that 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 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:
6
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 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
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | CHRISTIANS_TODD_B_DA_0432_18_0454_I_1_FINAL_ORDER_1988023.pdf | 2022-12-21 | null | DA-0432 | NP |
3,861 | https://www.mspb.gov/decisions/nonprecedential/HARRIS_DANDREA_L_CH_0752_16_0501_I_1_FINAL_ORDER_1986711.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
D’ANDREA L. HARRIS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CH-0752 -16-0501 -I-1
DATE: December 16, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Catherine O. Marks , Chicago, I llinois, for the appellant.
Rebecca L. Heeter , Esquire, C hicago , 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 d ecision, which
dismissed her suspension appeal for lack of jurisdiction . Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
erroneous interpretation of statute or regulation or the erroneous 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. Titl e 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established 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, who is employed as a Level 07 Lead Sales Clerk, filed a
Board appeal, challenging the agency’s decision to place her in an emergency
off-duty status (without pa y) and change her work schedule. Initial Appeal File
(IAF), Tab 1 at 2, Tab 9, Initial Decision (ID) at 2. She alleged the actions were
taken in reprisal for her equal employment opportunity (EEO) activit y. IAF,
Tab 1 at 2. The administrative judge apprised the appellant of her burden to
establish jurisdiction over her appeal, including that she was a Postal employee
over whom the Board had jurisdiction , and afforded her an opportunity to provide
addition al argument and evidence on the jurisdictional issue . IAF, Tab 2 at 2-3.
The appellan t’s response only provided more details about the complained -of
personnel actions and her reprisal claims , which were immaterial to the identified
jurisdictional issue . IA F, Tab 7.
¶3 The administrative judge issued an initial decision, dismissing the appeal
for lack of jurisdiction, without holding the appellant’s requested hearing. IAF,
Tab 1 at 1, ID at 7. The administrative judge considered the undisputed facts that
3
the appellant had served in the U.S. Army from August 6, 1980, until she was
honorably d ischarged on October 27, 1981, and that at the time of filing her
appeal, she had completed 1 year of current, continuous service. ID at 2, 4. She
nonetheless found that the appellant did not nonfrivolously allege that she w as an
employee, as defined by 5 U.S.C. § 7511 (a)(1)(B) or 39 U.S.C. § 1005 (a)(4), with
chapter 75 adverse action appeal rights . ID at 3 -7. Specifically, the
admini strative judge found that the appellant was not a manager, supervisor, or
confidential employee. ID at 4. She further found that the appellant was not
preference eligible, as she did not meet the statutory definition of a veteran
because she did not serv e during the time periods en umerated in 5 U.S.C.
§ 2108 (1) or receive a campaign badge or expeditionary medal, and she did not
claim to be or provide evidence that she was a disabled veteran . ID at 4-6. The
administrative judge also noted that this finding was consistent with the
appellant’s initial appeal form, in which she indicated that she was not entitled to
veteran s’ preference. ID at 6. Finally, she found that in the absence of an
otherw ise appealable action, the Board lacked jurisdiction over the appellan t’s
EEO reprisal claims. ID at 7.
¶4 The appellant ha s filed a petition for review . Petition for Review (PFR)
File, Tab 1 .2 The agency has filed a response, to which the appellant has re plied.
PFR File, Tabs 5 -6.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 To appeal an adverse action under chapter 75, a Postal Service employee
must be covered by 39 U.S.C. § 1005 (a) or 5 U.S.C. § 7511 (a)(1)(B). 5 U.S.C.
2 On September 13, 2016, the appellant filed with the Board’s Central Regional Office
her “Response to Jurisdiction,” challenging the administrative judge’s dismissal of her
appeal . PFR File, Tab 1 at 3, 5, 24. The Central Regi onal Office forwarded the filing
to the Clerk of the Board , who properly docketed it as a petition for review. PFR File,
Tab 1 at 2, 5 -7; see 5 C.F.R. § 1201.114 (a)(1) (explaining that a petition for review is a
pleading in which a party contends that an initial decision was incorrectly decided in
whole or in part).
4
§ 7511 (b)(8). Thus, the individual must be a preference eligible, a management
or supervisory employee, or an employee engaged in personnel work in other than
a purely non confidential clerical capacity; and must have completed 1 year of
current continuous service in the same or similar position. Toomey v. U.S. Postal
Service , 71 M.S.P.R. 10 , 12 (1996).
¶6 The appellant challenges the administrative judge’s finding that her position
is not supervisory or managerial, arguing , for the first time on review, that her
position is equiv alent to a supervisory position . PFR File, Tab 1 at 5 -7. She
further claims, for the first time on review, that she is entitled to veterans’
preference because she is a “service connected veteran .” Id. She seeks to
provide ne w evidence in suppor t of those contentions: (1) a document, dated
March 19, 1987, indicating that she was discharged from the U.S. Army Reserves
on that date ; (2) an undated position description and qualification standards for
her position ; and (3) a Depa rtment of Labor, Family Medical Leave Act
certification prepared by her physician in 2014 concerning her health condition at
that time .3 PFR File, Tab 1 at 9-17.
¶7 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). Furthermore, u nder
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. See Avansino v.
U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980) . However, because the
appellant’s new evidence and argument implicates the Board’s jurisdiction, we
3 The remaining documents that the appellant attaches to her petition for review relate
to the merits of the agency’s acti on. PFR File, Tab 1 at 7, 18 -23. Therefore, we decline
to consider them further. Becker v. Department of Veterans Affairs , 112 M.S.P.R. 507,
¶ 9 (2009) (observing that if the threshold issue is jurisdiction, new evidence only is
material on review if it warrants a different outcome on the jurisdictional question).
5
will consider them. See Lovoy v. Department of Health & Human Services ,
94 M.S.P.R. 571, ¶ 30 (2003) (considering new arguments raised by an agency on
review because the issue of jurisdiction can be raised at any time).
¶8 This new evidence does not support the appellant’s contentions that she is
preference eligible as defined by 5 U.S.C. § 2108 (3), or that she is a manager or
supervisor under 39 U.S.C. § 1005 (a)(4)(A)(ii) . The appellant’s membership in a
bargaining unit precludes her from bei ng a manager or supervisor. 39 U.S.C.
§ 1202 (1); see Carrier v. Merit Systems P rotection Board , 183 F.3d 1376 , 1378
(Fed. Cir. 1999) (recognizing that managers, supervisors, and confidential
employees are barred as a matter of law from membership in a collective
bargaining unit). Further, honorable service in the reserves, without more, does
not qualify an individual as a preference eligible. See generally 5 U.S.C.
§ 2108 (3) (setting forth the requirements for preference eligibility). Finally, there
is no indication that the appellant’s medical condition, which her physician
indicates began in 1990, is related to her military service. PFR File, Tab 1 at 15.
¶9 The ap pellant has not raised any additional challenges to or otherwise
provided a basis for disturbing the administrative judge’s findings that the
appellant failed to nonfrivolously allege that she was an employee with adverse
action appeal rights . We therefor e deny the appellant’s petition for review and
affirm the administrative judge’s dismissal of her 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
4 Since the issuance of the initial decision in this matter, the B oard 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
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts wil l rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
abou t whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petit ion for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)( A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the 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
7
http://www.mspb.gov/probono for inf ormation regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case .
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on u nlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 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 law yer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through th e link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrim ination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
8
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calen dar days after your representative 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
Washingto n, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, 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 challe nge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review eit her with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
5 The original statutory provision that provided for judicial review of cert ain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
9
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Gui de for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warra nts that
any attorney will accept representation in a given case.
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 | HARRIS_DANDREA_L_CH_0752_16_0501_I_1_FINAL_ORDER_1986711.pdf | 2022-12-16 | null | CH-0752 | NP |
3,862 | https://www.mspb.gov/decisions/nonprecedential/FENNER_JEROLD_E_SF_0752_17_0214_I_1_REMAND_ORDER_1986727.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JEROLD E. FENNER,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.
DOCKET NUMBER
SF-0752 -17-0214 -I-1
DATE: December 16, 2022
THIS ORDER IS NONPRECEDENTIAL1
Jerold E. Fenner , Danville, California, pro se.
Jacob Richards , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial de cision, which
dismissed his mixed -case removal appeal as premature. For the reasons discussed
below, we VACATE the initial decision and REMAND the case to the regional
office for further adjudication in accordance with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judg es are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
BACKGROUND
¶2 Effective December 19, 2016, the agency removed the appellant from his
Public Health Advisor p osition for medical inability to perform the essential
duties of his position . Initial Appeal File (IAF), Tab 1 at 8 -10. On January 3,
2017, the appellant filed a formal complaint of discrimination with the agency.2
IAF, Tab 8 at 15 -19. On January 17, 2017 , he appealed his removal to the Board.
IAF, Tab 1. The agency moved to dismiss the appeal, asserting that the
appellant’s formal equal employment o pportunity (EEO ) complaint included a
claim that his removal constituted disability discrimination and, thus, the
appellant had made a binding election to pursue his removal through the EEO
process. IAF, Tab 9. In response to the agency’s motion to dismiss, the app ellant
maintained that his EEO complaint only included his proposed removal, not the
removal decision. IAF, Tab 10. On March 13, 2017 , four days after the agency
filed its motion to dismiss, the appellant contacted the agency’s EEO office to
clarify that he intended for his EEO complaint to include only his proposed
removal, not his removal. IAF, Tab 10 at 6; Petition for Review (PFR) File,
Tab 3 at 11. On March 28, 2017, the agency’s EEO office issued a notice of
accepted claims, which did not include his removal. PFR File, Tab 3 at 14 -15.
¶3 The administrative judge issued an initial decision, finding that the
language in the EEO complaint reflected that it encompassed the appellant’s
removal, not just his proposed removal. IAF, Tab 16, Initial Decisi on (ID) at 2.
Consequently, he dismissed the appeal as premature because the agency had not
yet issued a final decision and 120 days had not yet elapsed from the date the
appellant filed his formal complaint of discrimination. ID at 3.
¶4 The appellant has filed a petition for review in which he reiterates his
argument below that his EEO complaint did not encompass his December 19,
2016 removal. PFR File, Tab 1 at 2. The agency has opposed the appellant’s
2 The appellant’s formal complaint is not signed or dated but is date stamped as
received by the agency on January 3, 2017. IAF, Tab 8 at 15 -19.
3
petition and argues that he elected to pursue his r emoval through the EEO process
and the Board lacks jurisdiction because the appellant withdrew his removal
claim prior to exhausting the EEO process . PFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 An individual who has been subjected to an action appe alable to the Board
and believes that action was based on discrimination may either file a timely
formal discrimination complaint with the agency regarding the action or file an
appeal with the Board within 30 days of the appealable action, but not both. Lott
v. Department of the Army , 82 M.S.P.R. 666 , ¶ 6 (1999); 5 C.F.R. § 1201.154 (a).
Under 5 C.F.R. § 1201.154 (b)(1) and (2), if the employee first files a formal
complaint with the agency, he then must file a Board appeal within 30 days after
he receives the agency resolution or final decision on the discrimination issue, or,
if the agency has not resolved the matter or issued a final decision on the formal
complaint within 120 days, he may appeal the matter directly to the Board at any
time af ter the expiration of 120 days. Lott, 82 M.S.P.R. 666 , ¶ 6. An appellant
cannot file both an EEO complaint with the agency and an appeal with the Board
based on the same subject matter, and whichever is filed first is considered an
election to proceed in that forum. 29 C.F.R. § 1614.30 2(b); see Wolfe v.
Departm ent of the Army , 77 M.S.P.R. 175 , 179 n. 1 (1998); Peartree v. U.S.
Postal Service , 66 M.S.P.R. 332 , 341 (1995).
¶6 In analyzing what agency actions are encompassed in an appellant’s EEO
complaint , the Board looks to the complaint, the agency ’s treatment of and
processing of the claim , and the surrounding circumstances. Gray v. U.S. Postal
Service , 93 M.S.P.R. 161 , ¶ 11 (2002). Here, the app ellant appears to have filed
an E EO complaint on January 3, 2017, in which he used the words “removal” and
“terminated” in reference to the agency’s alleged discriminatory acts as well as
noted that the date of the most recent act of alleged discrimination was
4
December 19, 2016, the effective date of his removal. IAF, Tab 8 at 15 -17.
However, this complaint was neither signed by the appellant nor dated. Id. at 18 .
¶7 Regarding the agency’s treatment and processing of the complaint, t he
record does not incl ude any agency correspondence related to the appellant’s
accepted claims before he filed his Board appeal or before March 13, 2017, when
he contacte d the agency to clarify that his EEO complaint did not include his
removal. Rather, it appears that as of M arch 9, 2017, the agency had not taken
any action to accept the appellant’s complaint , but rather was in the process of
reviewing the complaint to determine whether the agency would conduct an
investigation. Id. at 21. It was not until March 28, 2017, af ter the appellant had
filed his Board appeal, that the agency issued a notice accepting his claims. PFR
File, Tab 3 at 11 -18. This noti ce did not include the appellant ’s removal as an
accepted claim , and the agency processed his complaint as a non mixed c omplaint .
Id. at 14 -15. Nor does the notice referenc e that the appellant withdrew any prior
removal claim.
¶8 Under the particular facts of this case, w e find that the appellant ’s EEO
complaint did not encompass his removal and thus, he did not make an info rmed
election to chall enge his removal under the agency’s EEO pro cess.3 Cf. Moore v.
Department of Justice , 112 M.S.P.R. 382 , ¶¶ 14 -17 (2009) (finding that the
appellant elected to challenge her removal via the agency’s EEO process whe n
she filed her EEO com plaint , amended it to include her removal , and the agency
accepted her complaint , all before she filed her Board appeal ). Conseq uently , we
find that the appellant timely filed a Board appeal within 30 days of the effective
date of his removal on December 19, 2016. See 5 C.F.R. § 1201.154 (a).
3 In light of our determination th at the appellant did not elect to challenge his removal
through the agency’s EEO process, we need not address the agency’s argument that the
Board lacks jurisdiction because he withdrew his removal as a claim via his March 13,
2017 communications with the agency’s EEO office. PFR File, Tab 3 at 8 -9.
5
ORDER
¶9 For the re asons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.4
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
4 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. | FENNER_JEROLD_E_SF_0752_17_0214_I_1_REMAND_ORDER_1986727.pdf | 2022-12-16 | null | SF-0752 | NP |
3,863 | https://www.mspb.gov/decisions/nonprecedential/THOMPSON_BYRON_L_DA_0752_15_0590_I_1_FINAL_ORDER_1986763.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BYRON L. THOMPSON,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DA-0752 -15-0590 -I-1
DATE: December 16, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
M. Jermaine Watson , Esquire, Dallas, Texas, for the appellant.
Theresa M. Gegen , Esquire, 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
affirmed his removal . Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and ad ministrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not av ailable when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly modified to
address an additional consideration in the penalty determination, we AFFIRM the
initial decision, still sustaining the removal .
BACKGROUND
¶2 The appellant was employed as a Custodian until the agency removed him,
effective July 30, 2015, based on one charge of unacceptable conduct , in which
the agency alleged that, on May 28, 2015 , the appellant assaulted a member of the
public (hereinafter, the “individual”) . Initial Appeal File ( IAF), Tab 6 at 18.
According to the supporting narrative, after being notified that the individual was
disturbing customers, the appellant entered the lobby, took the individual’s
belongings , “pitched” or “threw” them outside, and pushed the individual as he
exited out the door . Id. at 24 -25. The narrative then stated that the appellant
briefly reentered the facility to hand a supervisor his badge , reexited the facility ,
and pushed the individual to the ground , injuring his knee. Id. The physical
altercation was witnessed by at least two Postal S ervice employee s and one
customer, who captured part of the altercation on video using her cellular phone.
Id.
¶3 The appellant filed a Board appeal , disputing the penalty and raising
disability discrimination affirmative defense s. IAF, Tab s 1, 13. The appellant
3
argued that the deciding official failed to properly weigh the relevant Douglas
factors and that the penalty of removal was beyond the bounds of reasonableness.
IAF, Tab 1 at 10-14. In support, he alleged that the deciding official erred by not
consideri ng as signi ficant mitigating factors: (1) that he was provoked by the
individual’s use of racial slurs and epithets toward him as the individual passed
by him to exit; (2) his post-traumatic stress disorder (PTSD); (3) the lack of
serious injury to t he in dividual; (4) the fact that he was not criminally c harged or
cited for his conduct; and (5) his 18-year length of service with no prior
discipline . Id. at 8, 13-14. He further claimed that he was not on notice of the
relevant Employee and Labor Relations policies 665.16 and 665.24 about
“Behavior and Personal Habits” and “Violent and /or Threatening Behavior.” Id.
at 14 , 26-27. Finally, he alleged that , contrary to the deciding official’s finding,
he could be rehabilitat ed because further medical treatment had helped him
manage his PTSD. Id. at 14. He also provided discharge and progress no tes from
his treatment at the Dallas Veterans Medical Center from November 2015 in
support of his claims that he had PTSD and that his mental c ondition significantly
impacted his behavior . IAF, Tab 13 at 9-18.
¶4 After holding the appellant’s requested hearing, the administrative judge
issued an initial decision affirming the appellant’s removal and denying his
affirmative defense s of disability di scrimination and denial of reasonable
accommodation . IAF, Tab 1 at 2, Tab 19, Initial Decision (ID) at 2, 13, 15 -16,
23. The administrative judge found that the agency proved the charge, there was
a nexus between the sustained charge and the efficiency of the service, and the
penalty of remova l was reasonable. ID at 10, 16, 23. As for the penalty in
particular , the administrative judge agreed with the deciding official’s
determi nation that the appellant’s unjustified, intentional, and unprovoked
physical assault on a member of the public was serious misconduct that di rectly
related to his job duties . ID at 17-21. He also found that the deciding official
determined that the appe llant’s misconduct was aggravated by the fact that it was
4
witnessed by at least one postal customer, that no alternative sanction was
available , and t hat t he appellant had no potential for rehabilitation in light of the
seriousness of his misconduct. ID a t 18. The administrative judge further found
that the deciding official properly considered the appellant’s 18-year work
history, lack of disciplinary record , and remorse as mitigati ng factors, and the
appellant’ s PTSD as only a minor mitigating factor, g iven his failure to show a
causal connection between his PTSD and the second physical assault . ID
at 18, 21-22. Thus , the administrative judge found no basis to disturb the
agency’s decision because the deciding official weighed all of the relevant
Dougl as factors and the penalty of removal was within the bounds of
reasonableness. ID at 23.
¶5 The appellant has filed a petition for review, arguing that the administrative
judge erred in deferring to the agency’s chosen penalty of removal because the
deciding official improperly weighed some and failed to consider other Douglas
factors and erred in finding that the penalty of removal did not exceed the bounds
of reasonableness . Petition for Review (PFR) File, T ab 1 at 4 , 6-9. The appellant
has no t challenged, and we discern no error with, the administrative judge’s
findings that the agency proved the charge and nexus and that the appellant did
not meet his burden of proving his affirmative defenses. The agency has filed a
response. PFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 In determining an appropriate penalty, an agency must review relevant
mitigating factors, also known as the “Douglas factors ,” pursuant to Douglas v.
Veterans Administration , 5 M.S.P.R. 280 , 305 -06 (1981). The Board gives due
deference to the agency’s discretion in exercising its managerial function of
maintaining employee discipline and efficiency. See Davis v. U.S. Postal Service ,
120 M.S.P.R. 457 , ¶ 6 (2013). Thus, the Board will modify a penalty only if it
finds that the a gency failed to weigh the relevant factors or that the penalty the
5
agency imposed clearly exceeded the bounds of reasonableness. Id. For the
reasons discussed below, we find that the appellant has not provided a basis for
disturbing the administrative ju dge’ s affirmance of h is removal.
The appellant has not shown that his PTSD diagnosis was a significant mitigating
factor.
¶7 The appellant argues that the deciding official should have considered his
PTSD a significant mitigating factor and that the administrative judge erred in
finding otherwise . PFR File, Tab 1 at 7-9. In particular , he alleges that he should
not have been disadvantaged by the lack of medical documentation, as the agency
failed to request it. Id. at 8. Second, h e claims that his PTSD caused him to feel
threatened by the individual’s “racially charged comments” and explained why he
engaged and pushed the individual. Id. He further claims that designating the
first push as defensive an d the second one as aggressive because he took off his
badge in between obviates the true nature of the situation and the impact that his
PTSD had on the entire continuum of events that transpired within a matter of
seconds. Id. Finally, the appellant argues that he has rehabilitation potential
because he has controlled his PTSD , as evidenced by the fact that he had no other
altercation s, despite having PTSD since 2005, and he was cleared to return to
work in December 2015. Id. at 8-9.
¶8 Even if the appellant is unsuccessful in proving his disability discrimination
affirmative defense, as here, ID at 13, 15 -16, the underlying condition may
nonetheless be relevant to a Douglas factor analysis if it is a causative factor in
the charged misco nduct , Walsh v. U.S. Postal Service , 74 M.S.P.R. 627 , 638-39
(1997). As the appellant argued that his PT SD was connected to his removal, he
must provide sufficient evidence of a causal relationship between his medical
condition and the charged misconduct. Gustave -Schmidt v. Department of Labor ,
87 M.S.P.R. 667 , ¶ 17 (2001) . If shown, his medical condition may be entitled to
significant weight as a mitigating factor . Id.
6
¶9 The administrative judge credited the appellant’s testimony and found that
the app ellant only pushed the individual because the individual passed closely by
and made racially derogatory statements toward the appellant as he exited. ID
at 5-6. The administrative judge also found that subsequent to the first push, the
appellant followed the individual outside and yelled at him in an aggressive tone,
while the individual stood several feet from the appellant, unmoving with his
hands at his side; the appellant then quickly approached and opened the facility
doors to hand a supervisor his b adge; and “swiftly pivot [ed]” toward and “without
hesitation” approached the individual, extended his hands and “violently” struck
the individual “with enough force to knock him to the ground .” ID at 6 -8. He
further found that the individual did not charge the appellant, as the appellant
contended, and he only raised his arm into a defensive position immediately
before being struck by the appellant. Id. In making those findings, t he
administrative judge credited the video and the testimony and state ments of the
three witnesses over the appellant’s version of events , and we discern no reason
to disturb those findings. ID at 6-9; see Haebe v. Department of Justice , 288 F.3d
1288 , 1301 (Fed. Cir. 2002) (holding that the Board must d efer to an
administrative judge’ s credibility determinations when they are based, explicitly
or implicitly, on observing the demeanor of witnesses testifying at a h earing, and
may overturn such determinations only when it has “sufficien tly sound” reasons
for doing so); Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997) (finding
no reason to disturb the administrative judge’s findings when she considered the
evidence as a whole, drew appropriate inferences, and made reasoned conclusions
on issues of credibility); Broughton v. Department of Health & Human Services ,
33 M.S.P.R. 357 , 359 (1987) (same).
¶10 To the extent that the deciding official and the administrative judg e did not
afford any mitigating weight to the appellant’s allegation that he was provoked by
the individual’s use of racial slurs, this was error. The deciding official and the
administrative judge should have consid ered the appellant’s allegation in this
7
regard under Douglas factor 11, “mitigating circumstances surrounding the
offense, such as . . . malice or provocation on the part of others involved in the
matter .” Douglas , 5 M.S.P.R. at 305 . For purposes of our analysis, we credit the
appellant’s sta tements on this issue , and we make clear that the racial slurs and
behavior described by the appellant are unacceptable . We therefore modify the
initial decision to clarify that the appellant’s contention that he was provoked by
the individual’s use of ra cial slurs is a mitigating factor. However, as further
explained below, this offensive language does not justify the appellant’s violent
actions under the circumstances here .
¶11 The facts show that the appellant had an opportunity to retreat and avoid the
second confrontation when he reentered the facility to hand over his badge.
Therefore, while the individual’s use of racial slurs was offensive and should be
considered as a mitigating factor , it was insufficient to relieve the appellant of his
obligation t o retreat when possible to avoid a physical confrontation , even if the
events occ urred in a short period of time . See Harris v. U.S. Postal Service ,
100 M.S.P.R. 613 , ¶ 14 (2005) (finding that a customer’s offensive, profane, and
racially derogatory verbal abuse was not sufficient provocation to justify the
appellant’s violent reaction, especially given that the appellant had an opportunity
to retreat and avoid the physical confrontation ). The appellant argues that Harris
is distinguishable because there the appellant was a superv isor and held to a
higher standard. PFR File, Tab 1 at 9. We disagree. T he presence of that
additional aggravating factor does not alter the separate finding that provocation
does not justify violence if the appellant had an opportunity to retreat. Harris,
100 M.S.P.R. 613 , ¶¶ 14, 17. As the administrative judge found, that aspect of
the holding is applicable regardless of the appellant’s position . ID at 19.
¶12 We also agree with the administrative judge ’s finding that after returning
outside, the appellant, not the individual, acted aggressively without provocation
and was not justified in using any physical force , as the individ ual had not
initiated any physical contact . See Fuller v. Department of the Navy , 60 M.S.P.R.
8
187, 190 (1993) (observing that to support a self -defense claim, an appellant must
prove by preponderant evidence that she used only as much force as was
reasonably neces sary to be free of the contact) , aff’d , 40 F.3d 1250 (Fed. Cir.
1994) (Table) ; cf. Andrus v. Internal Revenue Service , 14 M.S.P.R. 500 , 502
(1983) (finding that an employee’s taunts of “what are you going to do about it?”
and continued movement towards the appellant were sufficient to provoke a
physical response ). Consequently, the appellant has shown no error in the
administrative judge’s treatment of the second assault as aggressive, rather than
as defensive. Thus , for the appellant’s PTSD to significantly mitigat e the
severity of the second assault, he must show that it was causally connected to his
aggressive conduct. We find that the appellant has made no such showing.
¶13 The limited medical documentation provided did not elaborate on the status
of the appellant’s PTSD at the relevant period or draw a causal connection
between his PTSD and the charged misconduct. IAF, Tab 13 at 13 -19. Thus,
even if it supports his contention that his PTSD caused him to respond more
defensively than a person without PTSD would hav e and was exacerbated by
being asked to perform duties outside of his craft and duty station , ID at 11; IAF,
Tab 18, Hearing Recording, 1:22 :00-1:33:08, 1:50:41 -1:56:02, 2:09:46 -2:10:55
(testimony of the appellant) ; see Hamilton v. U.S. Postal Service , 84 M.S.P.R.
635, ¶¶ 17, 20 -22 (1999) (finding the appellant’s uncontroverted testimony that
the unexcused absences for which he was charged were due to his medical
condition was sufficient to show a causal connection between the two), it does not
explain the appellant’s decision not to retreat when the opportunity presented
itself or prove a causal connection between his PTSD and verb al harassment,
pursuit, and second push, in which he was the unprovoked aggressor, see
Gustave -Schmidt , 87 M.S.P.R. 667 , ¶ 17 (finding that the appellant’s medical
evidence showing that her medical conditions negatively affected her ability to
perform her job duties was entitled only limited weight, as it did not establish that
those conditions contributed to the charged intenti onal misconduct) . We
9
therefore agree with the administrative judge that the appellant’s medical
condition was a minor, as opposed to a significant , mitigating factor. ID at 22.
¶14 Finally, t he appellant’s decision to seek treatment for his PTSD may
indicate a potential for rehabilitation. See Hamilton , 84 M.S.P.R. 635 , ¶ 19
(observing that an appellant’ s action in seeki ng treatment for his medical
condition indicates a potential for rehabilitation ). However, as noted above, he
did not show that his PTSD was causally connected to the second physical assault
and, therefore, recovery from or management of his PTSD is not necessarily
indicative of rehabilitation potential as to that misconduct . Moreover, as the
administrative judge found, there is no indication that the appellant completed the
recommended course of treatment. ID at 22; IAF, Tab 13 at 9 . Accordingly, we
agree with the administrative judge’s determination that the appellant’s PTSD
should not be afforded significant mitigating weight .
The appellant has shown no error i n the deciding official’s analysis of the
remaining relevant Douglas factor s.
¶15 The appellan t argues that the deciding official failed to consider the fact
that he was not criminally charged or prosecuted, he only pushed the individual,
and the individual suffered only minor injuries to his knee. PFR File, Tab 1 at 7.
The Board has found mitiga tion of a removal to a suspension appropriate in a
charge of physical assault on a coworker if the following elements are
met: (1) no serious injury resulted from the physical altercation ; (2) no weapons
were used; (3) the employee had a history of satisf actory performance; (4) the
agency did not rely upon a prior disciplinary record in selecting the penalty; and
(5) there was an element of provocation present. Faucher v. U.S. Postal Service ,
41 M.S.P.R. 336 , 339 (1989) (finding a 60 -day suspension , not removal, the
maximum reasonable penalty when all 5 of these circumstances were present).
However, Faucher is inapplicable to this appeal because the appellant’s
misconduct involved a member of the public, not a coworker; therefore, those
considerations are insufficient to mitigate the penalty here .
10
¶16 The appellant further claimed that the deciding official did not consider the
fact tha t the individual was not a postal customer, that the individual was causing
a disturbance to customers prior to the altercation, and that he displayed violent,
unstable behavior later that evening at the hospital where he was seeking
treatment for his knee . PFR File, Tab 1 at 7. The appellant has not shown how
the individual’s nonviolent conduct before the incident and behavior later that
evening alters the findings as to the appellant’s culpability or mitigate s the
severity of his physical assault. Cf. Horn v U.S. Postal Service , 10 M.S.P.R. 420 ,
422-23 (1982) (finding that the appellant’s physi cal response was warranted when
the coworker had threa tened him with physical violence 3 weeks before the
altercation, and the coworker had a long history of violent behavior and
dangerous propensities that placed the appellant and other employees in fear) .
¶17 The appellant also argues that the deciding official assigned too much
weight to the fact that at least one postal customer witnessed the altercation and
that he came into contact with the public in the performance of his duties. PFR
File, Tab 1 at 7. We discern no error with the deciding official’s decision to
consider the public nature of the altercation as an aggravating factor. See
Balouris v. U.S. Postal Service , 107 M.S.P.R. 574 , ¶ 7 (2008) (identifying as
relevant to the Douglas factor analysis the fact that the altercation took place
while the appellant was on duty and in uniform, and occurred on the s treet in
front of the facility where the incident could be observed by the public) , aff’d ,
No. 2008 -3147 (Fed. Cir. 2009). Moreover, although the appellant emphasizes
that not all of his duties involved interaction s with the public, he does not dispute
the administrative judge’s finding that he has some interacti ons with customers
because he was responsible for cleaning the public areas o f the station. PFR File,
Tab 1 at 7; ID at 2. Thus, the public nature of the appellant’s position and the
altercation are relevant to his type of employment and the notoriety of his offense
and were properly considered by the deciding official .
11
¶18 Accordingly , we find that the administrative judge did not err in deferring
to the agency’s chosen penalty of removal. We theref ore deny the appellant’s
petition for review and affirm the initial decision.
NOTICE OF APPEAL RIG HTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 U.S.C. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Pro tection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to see k review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by you r
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which mus t be received by the court
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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 prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.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
14
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Boar d’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 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.
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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | THOMPSON_BYRON_L_DA_0752_15_0590_I_1_FINAL_ORDER_1986763.pdf | 2022-12-16 | null | DA-0752 | NP |
3,864 | https://www.mspb.gov/decisions/nonprecedential/LONG_CHAD_D_DA_844E_20_0190_I_1_FINAL_ORDER_1986826.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHAD D. LONG,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DA-844E -20-0190 -I-1
DATE: December 16, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert R. McGill , Esquire, Walkersville, Maryland, for the appellant.
Jo Bell , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The Office of Personnel Management (OPM) has filed a petition for review
of the initial decision, which reversed OPM’s reconsideration decision denying
the appellant’s application for disability retirement. 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 dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affe cted the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Th erefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 After serving in the United States Navy, t he appellant was appointed to the
position of Airway Transportation Systems Specialist with the Federal Aviation
Administration (FAA) in 2009. Initial Appeal File (IAF), Tab 7 at 40, 46.
The undisputed evidence reflects that the appellant’s duties include d climbing
radar towers, lifting up to 50 pounds, bending, stooping, reaching, and standing
for long periods of time. Id. at 31. He resigned from his position with the FAA
in 2017 and thereafter filed an application for disability retirement asserting th at
he suffered from multi -level degenerative disc disease at L3 -L4, L4 -L5, and
L5-S1, radiculopathy/chronic lumbar pain, often severe, secondary to his disc
disease, and joint disease of the lumbar spine, causing pain and numbness
radiating to his lower le gs. Id. at 30. OPM denied the appellant’s application in
initial and reconsideration decision s, and this appeal followed. Id. at 5-11; IAF,
Tab 1. After a hearing, the administrative judge reversed OPM’s determination
and awarded the appellant disabili ty retirement benefits. IAF, Tab 15 , Initial
Decision (ID) .
¶3 OPM argues on review that the administrative judge erred in affording
considerable weight to the appellant’s post -resignation medical evidence.
3
Petition for Review (PFR) File , Tab 1 at 8 -13. First, OPM argues that, because
there is a lack of pre -separation objective medical evidence showing that the
appellant’s medical condition was incompatible with his useful and efficient
service, the administrative judge should have afford ed only minimal weight to the
post-resignation medical ev idence, including the hearing testimony of Doctor E .,
who examined the appellant. Id. at 8-9.
¶4 In Reilly v. Office of Personnel Management , 571 F.3d 1372 , 1382
(Fed. Cir. 2009), our reviewing court , in discussing medical evidence that
post-dates an employee’s separation , held that where proximity in time, lay
testimony, or some other evid ence provides the requisite link to the relevant
period, subsequent medical evidence can be very probative of a prior disability.
Here, although Doctor E . examined the appellant approximately 20 months after
he resigned, there is no suggestion that the co nditions the doctor observed were
attributable to events that occurred after the appellant ’s separation from the FAA ,
nor is there a lack of evidence connecting the appellant’s prior condition to the
more recent medical evidence. On the contrary, evidence from the appellant’s
time in the Navy , prior to his employment by the FAA, showed multi -level
degenerative disc disease in his lumbar spine and attendant work restrictions,
IAF, Tab 7 at 51 -53, and an orthopedist ’s report from 2 weeks after the
appellant’ s resignation showed a diagnosis of chronic lumbar discomfort
secondary to degenerative disc and joint disease of the lumbar spine of many
years duration , id. at 55. Moreover, the appellant’s lay testimony clearly
established that he endured the same symptoms and level of severity before his
resignation as were observed after resignation. Reilly , 571 F.3d at 1382;
Henderson v. Office of Personnel Management , 109 M.S.P.R. 529 , ¶ 18 (2006)
(finding that an appellant’s subjective reports of pain and physical limitations are
entitled to substant ial weight if they are supported by objective clinical findings).
Further, while not automatically establishing that the appellant has met his
burden, OPM’s failure to present any medical evidence contrary to that presented
4
by the appellant is a factor fo r consideration. Bridges v. Office of Personnel
Management , 21 M.S.P.R. 716 , 719 (1984). Therefore, OPM has not shown that
the administ rative judge erred in affording considerable weight to the appellant’s
post-resignation medical evidence because it has not supported its claim of a lack
of pre -resignation corroborative evidence.2
¶5 OPM further argues on review that, for other reasons, the administrative
judge erred in finding persuasive the orthopedist’s report and Dr. E.’s report and
testimony. PFR File, Tab 1 at 9 -11. OPM asserts that the orthopedist did not
make any assessment regarding the appellant’s ability to perform his duties and
that the appellant apparently did not return to see him. Id. at 9-10. However, the
issue in this case is whether the appellant showed, as he claimed, that his medical
condition was incompatible with the performance of useful and efficient service
or retention in his position. Henderson v. Office of Personnel Management ,
117 M.S.P.R. 313 , ¶ 16 (2012) . Taken in context, we agree with the
administrative judge that the orthopedist ’s expression of “concern” with the
appellant’s safety in climbing towers speaks to the appellant’s ability to perform
the duties of his position and is entitled to consideration given that it is based on
the orthopedist’ s diagnosis , which is itself based on his physical examinatio n of
the appellant as well as a review of his medical history and x -rays. IAF, Tab 7
2 OPM states that it finds the appellant’s assertions “highly unpersuasive” and is
“suspicious” because he did not seek medical attention for his back pain while he was
employed and did not report his pain to his supervisor or coworkers. PFR File, Tab 1 at
8-9, 11 -12. The administrative judge considered and was persuaded by the appellant’s
undisputed testimony that he used stretching and resting to ease his pain and
occasionally took Advil but that he resisted taking drugs or painkillers because they
would have rendered performance of his duties dangerous to himself and others.
Hearing Compact Disc (HCD) ; ID at 6, 11. The administrative judge also considered
and credited the appellant’s undisputed testimony that supervisors and coworkers knew
he had back problems because, when the pain was intense, he would “ defer ” a job to
someone else but that he had a “high level work ethic” and tried to work through the
pain and that, in his view, “that’s the job” and you either do it or you leave.
HCD; ID at 7, 11.
5
at 55. Moreover, whether the appellant returned to see the orthopedist does not
bear on the evidentiary value to be afforded his report.
¶6 OPM also asserts that the admini strative judge erred in finding Dr. E.’s
report and testimony persuasive because the visit occurred after the appellant’s
application was denied and because it appears that the intent of the report was not
for treatment but rather in support of his appeal. PFR File, Tab 7 at 10 -11.
However, nothing in OPM’s regulations specifies that medical examinations or
documents that explain them must predate the applicant’s retirement or
resignation . Reilly , 571 F.3d at 1382; 5 C.F.R. § 844.201 . Again, OPM has
failed to establish that the administrative judge erred in affording considerable
weight to this post -resignation evidence.
ORDER
¶7 We ORDER OPM to grant the appellant ’s application for disab ility
retirement benefits . OPM must complete this action no later than 20 days after
the date of this decision.
¶8 We further ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and of the actions it has taken
to carry out the Board’s Order. We ORDER the appellant to provide all necessary
information OPM requests to help it carry out the Board’s Order. The appellant,
if not notified, should ask the agency about its progress. See 5 C.F.R.
§ 1201.181 (b).
¶9 No later than 30 days after OPM 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
OPM did not fully carry out the Board’s Order. The petition should contain
specific reasons why the appellant believes that the agency has not fully carried
out the Board ’s Order, and shou ld include the dates and results of any
communications with the agency. 5 C.F.R. § 1201.182 (a).
6
NOTICE TO THE APPELL ANT REGARDINGYOUR RI GHT TO
REQUEST ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how 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.
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
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
8
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative 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
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:
9
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 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.
10
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | LONG_CHAD_D_DA_844E_20_0190_I_1_FINAL_ORDER_1986826.pdf | 2022-12-16 | null | DA-844E | NP |
3,865 | https://www.mspb.gov/decisions/nonprecedential/HEGGINS_ANITA_M_DC_0831_17_0084_I_1_FINAL_ORDER_1986360.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANITA M. HEGGINS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DC-0831 -17-0084 -I-1
DATE: December 15, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Anita M. Heggins , Spencer, North Carolina, 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 decision of the Office of Personnel Management (OPM) to deny her
request for a waiver on some of the interest due with her redeposit of refunded
retirement deductions . On petition for review, the appellant repeats her
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
argument, which was con sidered in the initial decision , that she should not have
to pay for the interest that accrued as a result of OPM’s delay in processing her
application. Generally, we grant petitions such as this one only in the following
circumstances: the initial decis ion 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 c ourse 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
statement of how cour ts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 Since the issuance of the initial decision in this matter, the Board may have updated
the not ice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have question s
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contain ed within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono fo r information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circu it), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accesse d through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you r eceive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later tha n 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises n o challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of is suance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by a ny court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whis tleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | HEGGINS_ANITA_M_DC_0831_17_0084_I_1_FINAL_ORDER_1986360.pdf | 2022-12-15 | null | DC-0831 | NP |
3,866 | https://www.mspb.gov/decisions/nonprecedential/HENRY_RICHARD_T_SF_0752_17_0139_I_1_FINAL_ORDER_1986384.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RICHARD T. HENRY,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
SF-0752 -17-0139 -I-1
DATE: December 15, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
William H. Brawner , Esquire, South Pasadena, California, for the
appellant.
Marcus Mitchell and Rachel Trafican , Esquire, Albuquerque, New Mexico,
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 removal as untimely filed. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the 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 assert s that the administrative judge
demonstrated her bias when she simply assumed that the agency’s witnesses had
no motive to lie and that he , the appellant, did have a reason to lie. Petition for
Review File, Tab 1 at 1. We find that the administrative jud ge did not assume
such facts, but instead she concluded those to be the facts only after properly
weighing the evidence . Initial Appeal File, Tab 21, Initial Decision (ID) at 6-7.
The mere fact that the administrative judge rule s against a party does not
establish bias . Thompson v. Department of the Army , 122 M.S.P.R. 372 , ¶ 29
(2015). We therefore find the appellant’s argum ent to be without merit.
¶3 The administrative judge found that the appellant received the decision
letter, effecting his removal immediately, on October 18, 2016. ID at 8. She
determined that he was required to file his appeal by November 25, 2016, and
concluded that his appeal was filed 14 days late, on December 9, 2016 . ID at 1-2,
8-9. In fact, t he appellant was required to file any appeal of his removal by
November 17, 2016, which was 30 days after he received the agency’s decision.
See 5 C.F.R. § 1201.22 (b)(1). Accordingly, we find that his appeal was untimely
3
filed by 22 days. This discrepancy is immaterial to the outcome. The appellant
has failed to show that his a ppeal was timely or that good cause existed for the
delay (be it 14 or 22 days) for the reasons set forth in the initial decision.
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 wi thin the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about 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
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the not ice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained wi thin the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for inf ormation regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case .
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on u nlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 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 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
6
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 addr ess:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by a ny court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whis tleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Board neither endorses the services 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 | HENRY_RICHARD_T_SF_0752_17_0139_I_1_FINAL_ORDER_1986384.pdf | 2022-12-15 | null | SF-0752 | NP |
3,867 | https://www.mspb.gov/decisions/nonprecedential/DAVIDE_CHAD_SF_0752_17_0006_I_1_FINAL_ORDER_1986407.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHAD DAVIDE,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
SF-0752 -17-0006 -I-1
DATE: December 15, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chad Davide , Port Orchard, Washington, pro se.
David C. Peck , Silverdale, 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 termination appeal for lack of jurisdiction . On petition for review,
the appellant has furnished copies of several successful performance reviews that
he received . Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, 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 t he 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 reg arding which cases fall within their
jurisdiction. If you wish to 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 adv ise 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 revi ew with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Addi tional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the cour t’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information rega rding pro bono representation
for Merit Systems Protection Board appellants before the 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) Judic ial 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 discr imination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial revi ew pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegation s of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the F ederal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circui t court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | DAVIDE_CHAD_SF_0752_17_0006_I_1_FINAL_ORDER_1986407.pdf | 2022-12-15 | null | SF-0752 | NP |
3,868 | https://www.mspb.gov/decisions/nonprecedential/GRANGER_GAYLENE_DA_0752_16_0173_I_1_FINAL_ORDER_1986455.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
GAYLENE GRANGER,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
DA-0752 -16-0173 -I-1
DATE: December 15, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael Sheridan , Orange, Massachusetts, for the appellant.
John T. LeMaster , Esquire, Washington, D.C., for the agency.
Timothy F. Maughan , Esquire, Grand Pra irie, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chai rman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained the appellant’s removal . On petition for review, the appellant argues
that the administrative judge misinterpreted the medical evidence; that the agency
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
improperly considered leave under the Family and Medical Leave Act of 1993 in
charging her with excessive absences; and that the administrative judge erred in
treating cert ain medical evidence as hearsay . 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 statut e 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 discret ion, 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 gran ting 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 for um 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
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is mos t appropriate in any matter.
3
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial rev iew in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at th e
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.g ov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim o f
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www .uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If yo u have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to th e EEOC by regular U.S. mail, the
address of the EEOC is:
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 Ac t of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice descri bed in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of c ompetent jurisdiction.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 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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR TH E BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | GRANGER_GAYLENE_DA_0752_16_0173_I_1_FINAL_ORDER_1986455.pdf | 2022-12-15 | null | DA-0752 | NP |
3,869 | https://www.mspb.gov/decisions/nonprecedential/BARNHART_BRETT_A_CH_0752_15_0082_C_1_FINAL_ORDER_1986456.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BRETT A. BARNHART,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
CH-0752 -15-0082 -C-1
DATE: December 15, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carl Eric Owen , Rupert, Idaho, for the appellant.
Caitlin Breedlove , Rock Island, 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
denied his petition for enforcement of the parties’ settlement agreement . On
review, the appellant argue s that the administrative judge committed procedural
errors, such as denying him a hearing and denying him the opportunity to respond
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 the agency’s f inal pleading. He also suggests that the administrative judge
exhibited bias. In addition, the appellant reasserts that the agency is engaging in
bad faith and remains noncompliant with the settlement agreement as it pertains
to documentation of his canc elled removal, interest on Federal Employee Health
Benefits withholdings, office space and equipment, and copies of pe rsonnel
documents . Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petition er’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of av ailable 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 w hich 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 wi thin their
jurisdiction. If you wish to 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 o f Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for re view to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, a nd Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono represent ation
4
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of ca ses involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you m ay obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the a ction involves a claim of
discrimination based on race, color, religion, sex, 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 oth er security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower P rotection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities li sted in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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.3 The court of appeals must receive your
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
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
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submi t a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | BARNHART_BRETT_A_CH_0752_15_0082_C_1_FINAL_ORDER_1986456.pdf | 2022-12-15 | null | CH-0752 | NP |
3,870 | https://www.mspb.gov/decisions/nonprecedential/BARNHART_BRETT_A_CH_0752_15_0082_C_2_FINAL_ORDER_1986464.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BRETT A. BARNHART,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
CH-0752 -15-0082 -C-2
DATE: December 15, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carl Eric Owen , Rupert, Idaho, for the appellant.
Caitlin Breedlove , Rock Island, 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 compliance petition for review of the compliance
initial decision, which denied his second petition for enforcement of the
agreement that settled his remanded removal appeal . On petition for review, the
appellant argues that the administrative judge erred in denying his second 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 enforcement. His sole contention on review reiterates his argument that the
agency breached the settlement agreement by failing to purchase required safety
equipment for him and he provides a largely illegible receipt that he contends
demonstrates that he purchased the equipment himself. 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 regulat ion or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201 .115 ( 5 C.F.R.
§ 1201.115 ). 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 pet ition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to dismiss the appellant’s claims concerning his safety
equipment and the repayment of interest on the refund of his Federal Employees
Health Benefits (FEHB) premi ums on the basis of res judicata, we AFFIRM the
initial decision.
¶2 When an appellant files an appeal that raises claims raised in an earlier
appeal after the initial decision in the earlier appeal has been issued, but before
the full Board has acted on the appellant ’s petition for review, it is appropriate to
dismiss the subsequent appeal on the grounds of adjudicatory efficiency. Zgonc
v. Department of Defense , 103 M.S.P.R. 666 , ¶ 6 (2006), aff’d per curiam ,
230 F. App’x 967 (Fed. Cir. 2007); McNeil v. Department of Defense ,
100 M.S.P.R. 146 , ¶ 11 (2005) . Because t he record showed that the appellant had
raised the issues of his safety equipment and the interest due on his refunded
FEHB contributions in his first petition for enforcement and the compliance
3
petition for review of the compliance initial decision in that matter was still
pending before the full Board at the time that the administrative judge issued the
compliance initial decision in the instant matter, the administrative judge
correctly dismiss ed those claims on the ground of adjudicatory efficiency.
Barnhart v. Department of the Army , MSPB Docket No. CH-0752 -15-0082 -C-2,
Compliance File , Tab 8, Compliance Initial Decision at 3-4; Zgonc, 103 M.S.P.R.
666, ¶ 6.
¶3 Neverthele ss, the Board has now issued a final decision denying the
appellant’s first petition for enforcement. Barnhart v. Department of the Army ,
MSPB Docket No. CH-0752 -15-0082 -C-1, Final Order (Dec. 15, 2022).
Res judicata precludes the parties from relitigating issues that were, or could have
been, raised in the prior action and is applicable if the following criteria are
satisfied: (1) the prior judgment was rendered by a forum with competent
jurisdiction; (2) the prior judgment was a final judgment on the merits; and
(3) the same cause of action and the same parties or their privies were involved in
both cases. Senyszyn v. Department of the Treasury , 113 M.S.P.R. 453 , ¶ 9
(2010) . Because the final decision on the appellant ’s first petition for
enforcement now meets those elements, we modify the initial decision to find that
the appellant’s claims concerning his safety equipment and FEHB premiums are
barred by res judicata. See 5 C.F.R. § 1201.113 (b) (explaining that an initial
decision becomes final when the Board denies the petition for review).
NOTICE OF APPEAL RIGHTS2
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
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
your cla ims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Mer it Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If y ou wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of yo ur case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circ uit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appe als for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
5
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protec tion Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discr imination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of t his decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 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 .
6
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for rev iew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice describe d in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
7
of appeals of com petent 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.
8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BARNHART_BRETT_A_CH_0752_15_0082_C_2_FINAL_ORDER_1986464.pdf | 2022-12-15 | null | CH-0752 | NP |
3,871 | https://www.mspb.gov/decisions/nonprecedential/SCOTT_WILLIAMS_TRAYCEE_DC_315H_21_0414_I_1_FINAL_ORDER_1986466.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TRAYCEE SCOTT -WILLIAMS,
Appellant,
v.
DEPARTMENT OF COMMER CE,
Agency.
DOCKET NUMBER
DC-315H -21-0414 -I-1
DATE: December 15, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Benjamin U. Bowden , Esquire , and Stacy N. Rodgers , Gulfport,
Mississippi, for the appellant.
Kardesha N. Bradley , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her 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 based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
erroneous interpretation of statute or regulation or the erroneous 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 review, the appellant argues that she det rimentally relied on the
agency’s affirmative misconduct, when it incorrectly afforded her a 5 -point
veterans ’ preference in appointing her to the position of Program Analyst, and
that the doctrine of equitable estoppel precludes the Government from termin ating
her appointment. Petition for Review File, Tab 1 at 4-6. The administrative
judge correctly found that the appellant failed to establish either of her theories.
More simply, however, the appellant’s claims of equitable estoppel and
detrimental rel iance fail because they are principles of contract law. In general,
however, Federal employment is not governed by contract law. Klamm v.
Department of Defense , 97 M.S.P.R. 276 , ¶ 9 (2004) (citing Bartel v. Federal
Aviation Administration , 14 M.S.P.R. 24 , 35 -36 (1982), aff’d as modified ,
30 M.S.P.R. 451 (1986)); see Walton v. Department of the Navy , 42 M.S.P.R.
244, 250 n.14 (1989) (stating that Federal employees derive the benefits and
emoluments of their positions from appointment rat her than from a contractual or
quasi -contractual relationship with the Government); Bartel , 14 M.S.P.R. at 35
(finding that appointment, not contract law, is the central concept in Federal
employment); see also Karahalios v. National Federation of Federal Employee s,
3
Local 1263 , 489 U.S. 527 , 535 (1989) (stating in the context of a Federal -sector
labor dispute that “Federal employment does not rest on contract in the private
sector sense”). Because the appellant has not explained how her con tract law
theories show that she met the statutory definition of an employee, they do not
constitute a nonfrivolous allegation of Board jurisdiction.
¶3 For the re asons stated in the initial decision, the appellant has not made a
nonfrivolous allegation of Board jurisdiction. Thus, we affirm the initial
decision.
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7 703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
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.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise 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 available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
5
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative 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 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:
6
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).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to 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 information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | SCOTT_WILLIAMS_TRAYCEE_DC_315H_21_0414_I_1_FINAL_ORDER_1986466.pdf | 2022-12-15 | null | DC-315H | NP |
3,872 | https://www.mspb.gov/decisions/nonprecedential/MONTGOMERY_THOMAS_V_DC_3330_17_0327_I_1_FINAL_ORDER_1986478.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
THOMAS V. MONTGOMERY , III,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.
DOCKET NUMBER
DC-3330 -17-0327 -I-1
DATE: December 15, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Thomas V. Montgomery, III , Centreville, Virginia, pro se.
James E. Simpson , 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
denied his request for corrective action under the Veterans Employment
Opportunities Act of 1998 . On petition for review, the appellant argues that the
administrative judge misch aracterized his appeal as a nonselection claim 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
abused his discretion when he considered the agency’s evidence and argument
after the close of record d ate. Petition for Review File, Tab 1 at 5-6. 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 established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Boar d’s
final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S. C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
immediately review the law applicable to your claims and carefully follow all
filing time limits and require ments. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If y ou have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board o rder must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N .W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.msp b.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept represent ation in a given case.
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 w hole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accesse d through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you r eceive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later tha n 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petit ion for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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 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 addres s:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 | MONTGOMERY_THOMAS_V_DC_3330_17_0327_I_1_FINAL_ORDER_1986478.pdf | 2022-12-15 | null | DC-3330 | NP |
3,873 | https://www.mspb.gov/decisions/nonprecedential/MARILUNGO_SUSAN_F_PH_0831_17_0086_I_1_FINAL_ORDER_1986490.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SUSAN F. MARILUNGO,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
PH-0831 -17-0086 -I-1
DATE: December 15, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Susan F. Marilungo , McClellandtown, Pennsylvania, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDE R
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM)
denying her request to reissue a check refunding her Civil Service Retirement
System (CSRS) retirement deductions . 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
reiterates her argument that she proved that she never received a refund check of
her CSRS retirement deductions . Petition for Review File, Tab 1 at 3 -4. The
appellant also reasserts her argument that she is entitled to interest on the refund
amount that she allegedly never received. Id. at 4. Generally, we grant petitions
such as this one only in the following cir cumstances: 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 argum ent 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 dete rmines the time limit for seeking such
review and 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
Syste ms Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
3
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, y ou
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, whi ch must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Fed eral
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you ar e interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Boa rd appellants before the Federal Circuit. The
4
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you hav e a
representative in 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.usc ourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 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
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
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
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judici al review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practi ce, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono repr esentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MARILUNGO_SUSAN_F_PH_0831_17_0086_I_1_FINAL_ORDER_1986490.pdf | 2022-12-15 | null | PH-0831 | NP |
3,874 | https://www.mspb.gov/decisions/nonprecedential/LEE_JOCELYN_DC_0752_17_0452_I_1_REMAND_ORDER_1986496.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOCELYN LEE,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DC-0752 -17-0452 -I-1
DATE: December 15, 2022
THIS ORDER IS NONPRECEDENTIAL1
Andrew Kim , Esquire, Atlanta, Georgia, for the appellant.
Joshua Barefoot , Winston -Salem, North Carolina, 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 claiming that the agency reduced her grade . The
administrative judge determined that the appellant failed to make a nonfrivolous
allegation that she suffered a reduction in grade, divesting the Board 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
jurisdiction over her appeal . For the reasons discussed below, we GRANT the
appellant’s petition for review , VACATE the initial decision, and REMAND the
case to the Washington Regional Office for furt her adjudication in accordance
with this Remand Order.
BACKGROUND
¶2 Effective February 21, 2016, the agency promoted the appellant to a GS-08,
step 4, position as a Supervisory Medical Support Assistant. Initial Appeal File
(IAF), Tab 13 at 8. The agency detailed the appellant to a Medical Support
Assistant positon from May 2016 to March 20, 2017 .2 IAF, Tab 1 at 10 -11,
Tab 10 at 5 . According to the appellant, in February 2017 , when t he detail was
coming to an end, the agency presented her a choice betwe en returning to a GS -08
Supervisory Medical Support Assistant position or a GS -05 Medical Support
Assistant position with pay retention . IAF, Tab 9 at 6-7. The appellant advised
that she wished to return to her former position. Id. at 7. After this mee ting, the
appellant claims that agency management informed her that she would not be
placed back in her former GS -08 position . Id. at 7, 43-44. The appellant’s
reassignment as a Medical Support Assistant went into effect on March 20, 2017 .
IAF, Tab 1 at 11, Tab 10 at 6.
¶3 The appellant then filed a Board appeal and request ed a hearing , alleging
that the agency constructively reduced her from a GS-08 to a GS-05 on March 20,
2017 , when it reassigned her to a Med ical Support Assistant position.3 IAF,
Tab 1 at 3, 11 -14. The agency contends that the appellant ’s reassignment to this
position was not a reduction in grade and is at the GS-08 level . IAF, Tab 10 at 6.
The administrative judge issued jurisdictional orders, to which both parties
responded. IAF, Tabs 8 -11, 13 -14. In an initial decision issued on the written
2 The appellant does not contend that the agency reduced her pay or grade during this
detail. IAF, Tab 14 at 11.
3 The appellant does not allege a ny reduction in pay. IAF, Tab 1 at 14.
3
record, the administrative judge determined that the appellant failed to
nonfrivolously allege that she suffered a reduction in grade, depriving the Board
of jurisdiction over her appeal. IA F, Tab 15, Initial Decision (ID). To support
this conclusion , the administrative judge relied on a Standard Form 50 (SF-50)
with an effective date of January 8, 2017 , listing the appellant as a GS-08, step 4 .
ID at 3 ; IAF, Tab 13 at 9. The administrativ e judge also concluded that the
appellant’s allegation did not meet the nonfrivolous standard because there was
no loss of pay , no SF -50 showing a reduction in grade, and the appel lant did not
produce evidence demonstrating that her Official Personnel Fold er reflects a
reduction . ID at 3 . The appellant filed a petition for review contesting the initial
decision, to which the agency responded in opposition. Petition for Review
(PFR) File, Tabs 1, 3.
ANALYSIS
¶4 The Board generally has jurisdiction to review an appeal of a reduction in
grade. See 5 U.S.C. §§ 7512 (3), 7513(d). Although the threshold issue of
whether the Board has jurisdiction over an appeal may be disposed of on the basis
of the documentary record in appropriate cases, such disposition is not always
permissible. See Dumas v. Merit Systems Protection Board , 789 F.2d 892 , 894
(Fed. Cir. 1986) . If an appellant makes a nonfrivolous allegation that an agency
constructively reduced her grade and such allegat ion is based on more than mere
conclusory accusations , she is entitled to a jurisdictional hearing on the matter.
Alford v. Department of the Army , 47 M.S.P.R. 271 , 274 -75 (1991) . A
nonfrivo lous allegation is an allegation of fact which , if proven , could establish a
prima facie case of Board jurisdiction over the appeal . Ferdon v. U.S. Postal
Service , 60 M.S.P.R. 325 , 329 (1994) .
¶5 The SF-50 produced by the agency that the administrative judge relied on in
the initial decision has an effectiv e date from January 2017, meaning it predate s
the appellant’s allegation that she suffered a reduction in grade on March 20,
4
2017. ID at 3; IAF, Tab 1 at 11, Tab 13 at 9 . Moreover, the SF -50 states that the
appellant is a Supervisory Medical Support Assistant, while the agency conceded
that on March 20, 2017 , it reassigned the appellant to a Medical Support Assistant
position . IAF, Tab 10 at 6, Tab 13 at 9. This evidence leaves the record unclear
and in dispute. As the appellant argues in her petit ion for review, i n determining
whether she has made a nonfrivolous allegat ion of jurisdiction entitling her to a
hearing, the administrative judge may consider the agency’s documentary
submissions; however, to the extent that the agency’s evidence constitu tes 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 and the agency’s evidence may not be
dispositive . Ferdon , 60 M.S.P.R. at 329; PFR File , Tab 1 at 13 -14. Relatedly, a n
SF-50 does no t constitute a personnel action itself and does not on its face control
an employee’s status and rights. Hunt -O’Neal v. Office of Personnel
Management , 116 M.S.P.R. 286 , ¶ 10 (2011) ; see, e.g. , Arrington v. Department
of the Navy , 117 M.S.P.R. 301 , ¶ 13 (2012) (finding that the appellant suffered an
appealable reduction in grade even though there was not a n SF-50 denoting any
reduction ). In addition, the Board has jurisdiction to hear an appeal of a
reduction in grade even if there is not an accompanying reduction in pay. See
5 U.S.C. §§ 7512 (3), 751 3(d); Arrington , 117 M.S.P.R. 301 , ¶¶ 8-13.
¶6 Therefore , the appellant’s allegation that the agency reduced her grade, if
proven , could establish a prima facie case of Board jurisdiction over her appeal.
See 5 U.S.C. §§ 7512 (3), 7513(d) . In support of her claim that she suffered this
reduction , the appellant provided her performance standards and position
description , both signed on March 21, 2017, indicating that her position was at
the GS-05 level. IAF, Tab 9 at 19 -29. The appellant also submitted declarations
from coworkers describing her new position as a demotion and at the GS -05 level ,
the office director’ s apparent approval of her placement in a GS-05 position, and
email s to supervisors about her reduction to a GS-05. Id. at 43 -44, 73 -74, 76 ; see
5
Woodworth v. Department of the Navy , 105 M.S.P.R. 456 , ¶ 14 (2007) (holding
that nonfrivolous jurisdictional allegations supported by affidavits or other
evide nce confer Board jurisdiction) , aff’d , 329 F App’x 281 (Fed. Cir. 2009) . As
such, we find that the appellant has made a non frivolous allegation that the
agency reduced her grade and is entitled to a jurisdictional hearing . Garcia v.
Department of Homeland Se curity , 437 F.3d 1322 , 1344 (Fed. Cir. 2006) (en
banc).
ORDER
¶7 For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication . The administrative judge sh ould apprise
the appellant of her burden in establishing Board jurisdiction over her reduction
in grade appeal and then convene a jurisdictional hearing. The parties also should
be afforded an o pportunity to conduct discovery on the issue of jurisdiction prior
to such hearing.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | LEE_JOCELYN_DC_0752_17_0452_I_1_REMAND_ORDER_1986496.pdf | 2022-12-15 | null | DC-0752 | NP |
3,875 | https://www.mspb.gov/decisions/nonprecedential/MONTGOMERY_THOMAS_V_DC_3330_17_0645_I_1_FINAL_ORDER_1986511.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
THOMAS V. MONTGOMERY , III,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DC-3330 -17-0645 -I-1
DATE: December 15, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Thomas V. Montgomery, III , Centreville, Virginia, pro se.
Schwanda Rountree , 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
denied his request for corrective action under the Veterans Employment
Opportunities Act of 1998 . On petition for review, the appellant argues that the
administrative judge shoul d have tolled the deadline at 5 U.S.C. § 3330a (a)(2)(A)
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
based on his equal employment opportunity complaint or on his health conditions ,
and he has submitted copies of two request for information forms regarding his
reasonable accommodation. 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 invo lved 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 s ection 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. § 12 01.113 (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 ad vice 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 sh ould
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot adv ise which option is most appropriate in any matter.
3
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully e ach of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more informati on.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petit ion to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s websit e, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representatio n for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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 discrimina tion
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representativ e 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, natio nal origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information fo r U.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 .
Alternati vely, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such re quest with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representati ve receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 personne l practice described in
section 2302(b) other than practices described in section 23 02(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circui t court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal 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 available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | MONTGOMERY_THOMAS_V_DC_3330_17_0645_I_1_FINAL_ORDER_1986511.pdf | 2022-12-15 | null | DC-3330 | NP |
3,876 | https://www.mspb.gov/decisions/nonprecedential/SOLOMON_ELIZABETH_A_CH_0432_15_0471_I_1_REMAND_ORDER_1986533.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ELIZABETH A. SOLOMON ,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
CH-0432 -15-0471 -I-1
DATE: December 15, 2022
THIS ORDER IS NONPRECEDENTIAL1
Pearl B. Hale , Pearl Harbor, Hawaii, for the appellant.
Richard Todd , Esquire, Arlington Heights, Illinois, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s action removing her, pursuant to 5 U.S.C. chapter 43, for
unacceptable performance . For the reasons discussed below, we GRANT the
appellant’s petition for r eview , VACATE the initial decision , and REMAND 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 nonprecedentia l orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by th e Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
case to the regional office for further adjudication in accordance with this
Remand Order.
BACKGROUND
¶2 The appellant was employed as an Information Technology (IT) Specialist
(Network/Customer Support) at a Field Services Center for the Defense Contract
Management Agency. Initial Appeal File (IAF), T ab 33, Initial Decision (ID)
at 2. The appellant received a fully successful performance rating in
January 2014 for the rating period ending on December 31, 2013 . IAF, Tab 8
at 4, Tab 16 at 6 . However, from March through June 2014, the appellant was
formally counseled on performance -related issues by her first -line supervisor on
three occasions . IAF, Tab 2 at 6. By letter date d September 17, 2014, t he Team
Chief notified the appellant that she was being placed on a 90 -day performance
improvement plan (PIP) because she was performing at an unacceptable level in
the following three critical elements of her position: “ IT Asset Ma nagement ”
(critical element 1), “First Call Resolution” (critical element 2), and Resolution
of Level 2 Service Center Tickets (critical element 3). IAF, Tab 8 at 4 -9. The
parties also refer to the critical elements of the appellant’s position as
“Contri butions to Mission Accomplishment” (CTMA). ID at 2. In the PIP, t he
Team Chief specified tasks for the appellant to perform and the minimum
acceptable accuracy rates that she was required to achieve by the end of the PIP
to be rated as fully successful . Id. The Team Chief also identified the training
available to the appellant and outlined the frequency of meetings that would be
held to monitor her progress during the PIP . Id. at 8-9. The Team Chief advised
the appellant that failure to reach the fully successful level in any of the three
critical job elements would result in an adverse action such as reassignm ent,
demotion, or removal from F ederal service. Id. at 4.
¶3 During the 90 -day PIP, the appellant and her union representative met with
her Team Chief on seven occasions. ID at 2; IAF, Tab 7 at 4. When the PIP
3
ended, the Team Chief determined that the appellant’s performance remained
unacceptable in all three of the critical elements noted as deficient in her PIP.
IAF, Tab 7 at 4. The Team Chief issued a notice of proposed removal in
February 2015, and the appellant replied. IAF, Tab 6 at 21 -46. On May 20,
2015, the Group Chief, acting as the deciding official, sustained the proposed
action and decided to remove the appellant from employm ent effective May 29,
2015. Id. at 16 -20. T he appellant retired on May 27, 2015 , prior to the effective
date of her removal . ID at 3. The Standard Form 50 documenting the appellant ’s
separation from service stated that she voluntarily retired in lieu o f an impending
removal for unacceptable performance in critical job elements. IAF, Tab 6 at 15.
¶4 The appellant filed an appeal with the Board, challenging the agency ’s
removal decision and raising affirmative defenses of race discrimination and
retaliation for engaging in equal employment opportunity ( EEO ) activity. IAF,
Tab 1, Tab 24 at 1 -7. Although she initially requested a hearing, she later
withdrew her request . ID at 1. Based on the written record, the administrative
judge found jurisdiction over this appeal and issued an initial decision denying
the appellant ’s affirmative defenses and affirming the agency ’s removal action .2
ID at 15, 17 -18. In reaching her decision, the administrative judge found that the
agency proved all of the elements for t aking a performanc e-based action against
the appellant under 5 U.S.C. chapter 43. ID at 4 -13.
¶5 The appellant has filed a petition for review, and the agency has responded
in opposition to her petition. Petition for Review (PFR) File, Tabs 2, 6. The
appellant also has filed a timely supplemental pleading. PFR File, Tabs 5, 7.
2 Because the appellant retired after the agency issued the removal decision and
references to the removal action remained in the appellant’s official personnel file , the
administrative judge properly found that the Board has jurisdiction over this appeal. ID
at 3-4; see Mays v. Department of Transportation , 27 F.3d 1577 , 1580 (Fed. Cir. 1994)
(determining that, pursuant to 5 U.S.C. § 7701 (j), a n employee, “stigmatized with an
adverse final decision reflected in her government employment record, may challenge
the final removal decis ion while also opting to retire ”).
4
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 At the time the initial decision was issued, the Board’s case law stated that,
in a performance -based appeal under 5 U.S.C. chapter 43, an agen cy must
establish by substantial evidence the following : (1) the Office of Personnel
Management approved its performance appraisal system and any significant
changes thereto; (2) the agency communicated to the appellant the performance
standards and criti cal elements of her position; (3) the appellant’s performance
standards were valid under 5 U.S.C. § 4302 (b)(1) (2012);3 (4) the agency warned
the appellant of the inadequacies of her performance du ring the appraisal period
and gave her a reasonable opportunity to demonstrate acceptable performance;
and (5) the appellant’s performance remained unacceptable in one or more of the
critical elements for which she was provided an opportunity to demonstrat e
acceptable performance. ID at 4; Lee v. Environmental Protection Agency ,
115 M.S.P.R. 533 , ¶ 5 (2010). The administrative judge addre ssed each of these
elements in turn and found that the agency carried its burden with respect to all of
them. ID at 5 -13.
¶7 On review, the appellant argues that the agency failed to meet its burden of
proving that it gave her a reasonable opportunity to dem onstrate acceptable
performance and that her performance remained unacceptable.4 PFR File, Tab 2
at 10 -11, 13 -15, Tab 7 at 4. She also reasserts her affirmative defense of EEO
retaliation, arguing that her Team Chief created a hostile work environment by
3 During the pendency of this appeal, the National Defense Authorization Act of 2 018
redesignated subsection 4302(b) as subsection 4302(c). Pub. L. No. 115 -91,
§ 1097(d)(1)(A), 131 Stat. 1283, 1619 (2017). Because these amendments post -date the
adverse employment action at issue here, we refer to the earlier codification. See
Harris v. Securities & Exchange Commission , 972 F.3d 1307 , 1311 n.1 (Fed. Cir.
2020) .
4 On review, the appellant does not specifically challenge the administrative judge’s
findings that the agency established the remaining elements required to prevail in a
performance -based removal appeal under chapter 43, and we affirm those findings. ID
at 4-7.
5
harassing her in reprisal for her EEO activity.5 PFR File, Tab 2 at 4 -15, Tab 7
at 7. She also argues that the administrative judge failed to acknowledge some of
her documentary evidence, and she submits several documents on review,
including one undated chart and other documents that predate the filing of her
appeal.6 PFR File, Tab 2 at 16 -33, Tab 7 at 9 -13. The appellant also makes
several arguments related to her performance prior to being placed on the PIP.
She asserts that the March 2014 co unseling letter, issued 6 months prior to her
placement on a PIP , included items that did not relate to the critical elements of
her position and violated the collective bargaining agreement (CBA) because it
did not provide a 90 -day minimum evaluation peri od in the 2014 rating year .
PFR File, Tab 2 at 13, Tab 7 at 4, 7. She also asserts that the March 2014
counseling letter improperly referred to items from the 2013 calendar year, for
which she received a fully successful rating, thereby violating the CBA ’s
requirement to “warn employees of serious performance deficiencies when they
occur.” PFR File, Tab 2 at 13 .
¶8 For the reasons stated herein , we affirm the administrat ive judge’s findings
that the agency met its burden t o prove that the appellant had a reasonable
opportunity to demonstrate acceptable performance and that her performance
5 Arguably, some of the appellant’s arguments on review implicate her claim of race
discrimination, but we find her arguments insufficient to disturb the administrative
judge’s finding that she failed to meet her burden of proo f on this issue. PFR File,
Tab 1 at 4, 11; ID at 13 -15.
6 To the extent that some of the documents submitted by the appellant are already part
of the record, we find that they are not new and they do not warrant disturbing the
initial decision. See Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256 (1980)
(holding that evidence that is already a part of the record is not new). Moreover, t he
appellant has not sh own that the documents that she submits for the first time on
review, or the informati on contained in those documents, were unavailable before the
record closed despite her due diligence. Therefore, the Board will not consider this
evidence. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980) ( holding
that, under 5 C.F.R. § 1201.115 , the Board will not consider evidence submitted for the
first time with the petition for review absent a showing that it was unavailable before
the reco rd was closed despite the party’ s due diligence).
6
remained unacceptable, and that the appellant failed to meet her burden to prove
her affirmative defense of retaliation. W e remand this appeal for further
adjudication r elated to the appellant’s pre -PIP performance in accordance with
recent case law , as set forth herein .
The agency afforded the appellant a reasonable opportunity to demonstrate
acceptable performance.
¶9 In determining whether an agency has afforded an emp loyee a reasonable
opportunity to demonstrate acceptable performance, relevant factors include the
nature of the duties and responsibilities of the employee’s position, the
performance deficiencies involved, and the amount of time that is sufficient to
enable the employee to demonstrate acceptable performance. Lee, 115 M.S.P.R.
533, ¶ 32. For the reasons explained below, we agree with the administrative
judge’s finding that the agency proffered substantial evidence that it afforded the
appellant a reasonable opportunity during the PIP to improve in the three critical
elements at issue. ID at 7 -11.
¶10 The appellant was an IT Specialist who p rovided customer service for the
agency’s field services office. ID at 1. The administrative judge noted that the
appellant’s position description referenced, among other things, providing
technical guidance and support to individuals within the organiza tion, resolving
user-reported problems and tickets, and ensuring overall IT infrastructure
availability and efficiency. ID at 7; IAF, Tab 8 at 17 -24. The administrative
judge found that the agency identified specific performance deficiencies and
required that the appellant improve her performance during the PIP in three key
areas, consisting of her IT management, her first -call resolution, and her
resolution of Level 2 service center tickets. ID at 7. The administrative judge
also found that the Team Ch ief provided the appellant with an extended period to
show improvement and held bi -weekly meetings during the PIP, giving the
appellant feedback on her performance. ID at 7 -8. The record contains the Team
Chief’s contemporaneous meeting notes documenting the appellant’s continued
7
performance deficiencies during the PIP. ID at 7 -8; IAF , Tab 7 at 4 -5, 21, 40 -41,
80.
¶11 Though not clear, th e appellant may be asserting on review that she did not
have a reasonable opportunity to demonstrate acceptable performa nce because the
PIP imposed requirements for being rated fully successful that were not based on
the critical elements of her position.7 PFR File, Tab 7 at 5-7. The administrative
judge found that the appellant failed the PIP , which required the appellant to
accurately complete the information technology equipment audit (CMTA # 1),
reach the 70% first call resoluti on rate (CMTA # 2), and resolve 65% of Level 2
tickets within 36 hours (CMTA #3). ID at 11 -12. These objective standards are
containe d in the appellant’s performance plan, and thus we find that the PIP did
not impose requirements for being rated fully successful that were not based on
the critical elements of her position. Compare IAF, Tab 8 at 4 -9, with id.
at 15-16. The appellant al so argues on review that she was denied a reasonable
opportunity to improve because of the hostile work environment that existed
before and during the PIP. PFR File, Tab 2 at 10 -11. In support of her argument,
she reasserts the allegations she made to th e administrative judge that she was
followed by coworkers and that they took pictures of her cubicle and emailed
them to her Team Chief. Id. at 7, 10 -11. She contends that a team leader yelled
at her and banged on her desk , but her supervisor took no act ion against the
contractor when informed of the incident. Id. at 5. She asserts that her Team
Chief treated her differently by instructing her not to interact with a newly hired
7 The appellant alleges that “items p laced in the counseling letter were greater than the
fully successful level.” PFR File, Tab 7 at 7. To the extent the appellant is asserting
that the March 2014 counseling letter imposed requirements for being rated fully
successful that were not based on the critical elements of her position, we find that the
appellant’s removal was based on the September 2014 PIP, not the March 2014
counseling letter. Nonetheless, due to the recent issuance of Santos v. National
Aeronautics & Space Administration , 990 F.3d 1355 , 1360 -61 (Fed. Cir. 2021) , we have
remanded this appeal for the administrative judge to consider the appellant’s assertions
regarding her pre -PIP performance . Infra ¶¶ 16, 22.
8
contractor seated next to her and that the contractor stalked her, listened to her
conversations, and informed a team leader on another floor about the substance of
those conversations. Id. at 6. She contends that her Team Chief “consigned” the
contractor’s behavior, which created a hostile work environment. Id. She further
contends that her Team Chief provided her with negative feedback, refused to
sign her continuing education certificate, sent her harassing emails, and yelled at
her and used derogatory and harassing language consisting of slurs and offensive
comments.8 Id. at 7, 10 -12.
¶12 The administrative judge considered the appellant’s hostile work
environment argument , including that her supervisor spoke to her frequently in a
rude and disrespectful manner and that he enlisted the appellant’s coworkers to
spy on her and ta ke photographs of her cubicle. ID at 9 -11; IAF, Tab 1 at 5 -7,
Tab 30 at 11. However, he found that the appellant failed to explain adequately
the nature , timing, and circumstances of her coworkers’ alleged harassment or
how it related to her ability to improve during the PIP. ID at 9-11. The
administrative judge also found no evidence that the feedback the appellant
received from her Team Chief during the PIP was inaccurate or made with any
particular animus or that there was any evidence of harassment that impeded her
ability to improve. Id. The appellant offers no new and material previously
unavailable evidence to the contrary on review. Having considered the
appellant’s arguments on review, we find no basis to disturb t he administrative
judge’s finding that the agency proved by substantial evidence that the appellant
received a reasonable opportunity to demonstrate acceptable performance. ID
at 11.
8 The appellant asserts that this harassing conduct formed the basis for her EEO
complaint. PFR File, Tab 2 at 11.
9
The agency proved by substantial evidence that the appellant’s performa nce
remained unacceptable in the critical elements for which she was given an
opportunity to demonstrate acceptable performance.
¶13 We are unconvinced by the appellant ’s argument on review that she met the
fully successful criteria for all three of her CTMAs and that the agency failed to
provide documentation to support removing her for performance deficiencies.
PFR File, Tab 7 at 5 -7. The administrative judge considered and rejected these
same arguments in the initial decision . ID at 9. The administrative judge found
that the record contains contemporaneous notes and supporting documentation
from the Team Chief ’s bi-weekly meetings with the appellant during the PIP,
which document her continued inability to properly audit IT equipment, process
password req uests in the required manner, and assist customers with their IT
issues before closing their tickets as resolved. ID at 8 -9.
¶14 The record evidence show s that the appellant failed to reach the fully
successful performance level by the end of her 90 -day PIP in part because she
was unable to properly audit IT equipment despite having at least three attempts
to do so, and she made multiple audit errors documented by the agency. ID
at 8-9; IAF, Tab 7 at 4 -20. After reviewing the claims contained in the
appell ant’s reply, the administrative judge found nothing to rebut the agency’s
evidence regarding her performance and no indication that she performed at the
fully successful level as required. ID at 12. We discern no reason to disturb the
administrative judg e’s finding that the agency proved by substantial evidence that
the appellant failed to reach the fully successful performance level by the end of
her 90 -day PIP. ID at 8 -13.
¶15 Considering the record as a whole, the administrative judge concluded that
a reasonable person would accept the agency’s evidence as adequate to support a
conclusion that the appellant’s performance was unacceptable and, therefore, the
agency met its burden of proving that her performance in at least one critical job
element was unac ceptable. ID at 13. On review, the appellant asserts that she
10
received an annual performance rating on January 29, 2015, rating her fully
successful for the period of January 1 to December 31, 2014. PFR File, Tab 7
at 4-5. The appellant has failed to c ite specific evidence to support her argument.
See 5 C.F.R. § 1201.114 (b) (stating that a petition for review must be supported
by specific references to the record); see also Tines v. Department of the Air
Force , 56 M.S.P.R. 90 , 92 (1992) (finding that a petition for review must contain
sufficient specificity to enable the Board to ascertain whether there is a more
serious evidentiary challenge justifying a complete review of the record).
Moreover, in response to the appellant’s proposed removal, the appellant’s
representative conceded that the agency withdrew the annu al appraisal that she
allegedly received on January 29, 2015. IAF, Tab 6 at 32. Accordingly, w e
discern no reason to disturb the administrative judge ’s finding that the agency
proved by substantial evidence that the appellant failed to reach the fully
successful performance level by the end of her 90 -day PIP on this basis . ID
at 8-13. We find that the appellant ’s remaining arguments on review amount to
mere disagreement with the well -reasoned, record -based findings of the
administrative judge. See Cros by v. U.S. Postal Service , 74 M.S.P.R. 98 , 105 -06
(1997) (finding no reason to disturb the administrative judge ’s findings when she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions); Broughton v. Department of Health & Human Services ,
33 M.S.P.R. 357 , 359 (1987) (same). Finally, although the appellant argues that
the administrative judge failed to acknowledge some of her documentary
evidence, an administrative judge’s failure to mention all of the evidence of
record d oes not mean that she did not consider it in reaching her decision. See
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).
11
Remand is required in light of recent case law to make findings as to the
appellant’s performance prior to the implementation of the PIP.
¶16 At the time the initial decision was issued, the Board had held that an
agency need not prove unacceptable performance prior to the PIP . See Wright v.
Department of Labor , 82 M.S.P.R. 186, ¶ 12 (1999); Brown v. Veterans
Administration , 44 M.S.P.R. 635 , 640 -41 (1990) . However, during the pendency
of the petition for revi ew in this case, the U.S. Court of Appeals for the Federal
Circuit issued Santos v. National Aeronautics & Space Administration , 990 F.3d
1355 , 1360 -61 (Fed. Cir. 2021), which held that, in addition to the five elements
of the agency’s case set forth in paragraph 6, the agency must also justify the
institution of a PIP by proving by substantial evidence that the employee’s
performance was unacceptable prior to the PIP. The Federal Circuit’s decision in
Santos applies to all pending cases, including this one, regard less of when the
events took place. Lee v. Department of Veterans Affairs , 2022 MSPB 11 , ¶ 16.
The appellant makes several assertion s regarding her pre -PIP performance on
review, including that her performance ratings were fully successful before the
PIP and that the March 2014 counseling letter, issued 6 months prior to the PIP,
improperly included items from the 2013 calendar year, f or which she received a
fully successful rating, and failed to provide a 90 -day minimum evaluation period
in the 2014 rating year . PFR File, Tab 2 at 4, 13-14. In light of Santos , we
remand the appeal to give the parties the opportunity to present additi onal
evidence as to these assertions and as to whether the appellant’s performance
during the period leading up to the PIP was unacceptable in one or more critical
elements . See Lee, 2022 MSPB 11, ¶¶ 15 -17.
The appellant failed to meet her burden of proving her affirmative defense of
EEO retaliation.
¶17 On review, the appellant challenges the administrative judge’s finding that
she failed to prove her affirmative defense of retaliation for EEO activity. PFR
File, Tab 2 at 8 -18; ID at 17. In analyzing the appellant’s retaliation claim, the
12
administrative judge applied the standard set forth in Warren v. Department of the
Army , 804 F.2d 654 , 656 -58 (Fed. Cir. 1986) , which requires, among other things,
that the appellant establish a “genuine nexus” between the alleged retaliation and
the contested employment action . ID at 15. However, the Warren standard does
not apply to claims of retaliation for Title VII EEO activity. Rather, to prove
such a claim, an appellant must show that she engaged in protected activity and
that the activi ty was a motivating factor in the agency’s action . Pridgen v. Office
of Management & Budget , 2022 MSPB 31, ¶¶ 21 -22, 30. To obtain full relief
under the statute, including reinstatement, back pay, and damages, an appellant
must show that retaliation was a “but-for” cause of the agency’s action. Id., ¶ 22.
An appellan t may prove a claim of retaliation under Title VII through d irect
evidence, circumstantial evidence, or some combination of the two. Id., ¶ 24.
Nevertheless, we find that that administrative judge’s application of the Warren
standard does not constitute reversible error because the evidence of record is
insufficie nt to support the appellant’s claim, even analyzed under the correct
evidentiary standards and framework. See Panter v. Department of the Air Force ,
22 M.S.P.R. 281 , 282 (1984) (holding that a n adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis to reverse an initial
decision ).
¶18 In her initial decision , the administrative judge assumed that the appellant
engaged in protected activity based on her allegation that she filed an EEO
complaint against her Team Chief in February 2014 and that the Team Chi ef
knew of her complaint. ID at 16. The administrative judge also assumed
arguendo that the appellant’s Team Chief may have had strong motive to retaliate
against her and that the PIP could have been retaliation for the appellant’s alleged
EEO activity. Id. The administrative judge noted the possibility of a slight
retaliatory motive by the Group Chief based on the inference that the appellant’s
alleged EEO complaint may have reflected negatively on the Group Chief’s area
of management, although there i s no indication that he was named in the
13
appellant’s EEO complaint. Id. The administrative judge nonetheless found that
the appellant failed to prove that reprisal for her EEO activity was a motivating
factor in her removal, having weighed the strength o f the agency’s motive to
retaliate against the strong documentation that the agency provided in support of
the removal action and the lack of evidence produced by the appellant relating to
her claim of EEO retaliation. ID at 16 -17. She found no pretext o r inaccuracies
in the documentation provided by the agency in support of the PIP or the removal
action , no evidence that the appellant was treated differently than employees who
did not participate in EEO activity , and no evidence that her EEO activity pla yed
any role in the agency’s decision to put her on a PIP or remove her. Id.
¶19 On r eview, the appellant argues that the administrative judge erred in
finding that she failed to prove her claims of EEO retaliation and a hostile work
environment. PFR File, Tab 2 at 4 -15. The appellant reasserts her argument that
she filed an EEO d iscrimi nation complaint in February 2014 against her Team
Chief for harassment and that he was aware of her EEO activity when he issued
her a performance counseling letter in March 2014 . Id. at 4. The appellant
characterizes the timing of the performance counse ling letter as suspicious
because she received a fully successful performance rating 2 months earlier . Id.
¶20 The appellant also argues that her Team Chief harassed her by creating a
hostile work environment and placing her on a PIP designed to make her fail in
retaliation for her EEO activity. Id. at 4 -14. The administrative judge noted the
appellant ’s disagree ment with the letter assessing her alleged performance
deficiencies and stating the tasks that she needed to complete to improve her
performance. ID at 6. The administrative judge found that the Team Chief had
bi-weekly meetings with the appellant during the PIP and discussed her
performance standards as stated in the PIP notification. Id. The administrative
judge also found that, during the initial meeting with the Team Chief , the parties
agreed to modify various dates and percentages required to be ra ted fully
14
successful and that n one of the changes that were made altered the requirements
to the appellant ’s detriment. Id.
¶21 Based on our review of the record, we find that the appellant failed to show
by preponderant evidence that retaliation for her EE O activity was a motivating
factor in the contested personnel action. See Pridgen , 2022 MSPB 31 , ¶ 33. We
agree with the administrative judge’s finding that the appellant produced
insufficient evidence to support her retaliation claim. ID at 16. Moreover, we
discern no reason to disturb the administrative judge ’s findings that the deciding
official performed his duties conscientiously and that there is no evidence that the
appellant ’s Team Chief had any partic ular animus toward her or made inaccurate
comments and criticisms about her job performance. ID at 9, 15, 17.
Accordingly, we find that the appellant failed to prove her affirmative defense of
retaliation for protected EEO activity .9
ORDER
¶22 For the reasons discussed above, we remand this case to the regional office
for further adjudication in acco rdance with this Remand Order. The
administrative judge shall accept evidence and argument on the issue of the
appellant’s pre -PIP performance and hold a supplemental hearing if request ed.
The administrative judge shall then issue a new initial decision consistent with
Santos and make explicit findings as to the appellant’s assertions regarding her
pre-PIP performance contained in paragraph 16 of this Remand Order . If the
agency makes the additional showing required under Santos on remand, the
administrative judge may incorporate the prior findings on the other elements of
the agency’s case and the appellant’s affirmative defense in the remand initial
decision. However, regardless of w hether the agency meets its burden, if the
9 Because we find that the appellant failed to prove that her EEO activity was a
motivating fa ctor in this removal, we do not reach the question of whether her activity
was a “ but-for” cause of the removal action. See Pridgen , 2022 MSPB 31 , ¶¶ 20 -22,
29-33.
15
argument or evidence on remand regarding the appellant’s pre -PIP performance
affects the administrative judge’s analysis as to any finding in the initial decision,
or any finding contained in this Remand Order, the administrative judge shall
address such argument or evidence in the remand initial decision.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SOLOMON_ELIZABETH_A_CH_0432_15_0471_I_1_REMAND_ORDER_1986533.pdf | 2022-12-15 | null | CH-0432 | NP |
3,877 | https://www.mspb.gov/decisions/nonprecedential/SWAIN_HOUSTON_E_SF_0845_21_0484_I_1_REMAND_ORDER_1986551.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
HOUSTON E. SWAIN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
SF-0845 -21-0484 -I-1
DATE: December 15, 2022
THIS ORDER IS NONPRECEDENTIAL1
Houston E. Swain , Acton, California, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chair man
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision,
which dismissed his Federal Employees’ Retirement System (FERS) annuity
overpayment appeal for lack of jurisdiction after the Office of Personnel
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
Management (OPM) indicated it rescinded its final decision. On petition for
review, the appellant argues the Board retains jurisdiction because OPM has not
restored him to the status quo ante. For the reasons discussed below, we GRANT
the appellant’s petition for review, VACATE the initial decision, and REMAND
the case to the regional office for further adjudication i n accordance with this
Remand Order.
BACKGROUND
¶2 As relevant here, in 2011, the appellant applied for both a disability and
immediate retirement annuity. Initial Appeal File (IAF), Tab 10 at 7, 22 .
While his disability retirement application was pending, OPM approved
his immediate retirement, effective September 1, 2011. Id. In 2017 ,
OPM approved his disability retirement application and , in 2018, instructed
him to elect either a disability retirement an nuity or a “regular unreduced
retirement.” Id. at 8-9, 36 -38. H e elected to receive the disability retirement
annuity . Id. at 16. In October 2018, OPM advised the appellant that it converted
his regular annuity to a disability retirement annuity . Id. at 10. OPM further
informed him that he had received an overpayment of $ 41,449.74 due to the
recalculation, to which he disputed and requested reconsideration. Id. at 11-15.
Subsequently, in an initial decision dated March 25, 2021, OPM informed the
appellant that it was adjusting his gross monthly annuity and related overpayment
based on an error it discovered . Id. at 19. Therefore, his outstand ing debt
balance was $18,787.00 . Id. He sought reconsideration of OPM’s decision , but it
issued a final decision sustaining its initial decision. Id. at 22 -27.
¶3 The appellant filed the instant Board appeal challenging the calculation of
his annuity and the related overpayment . IAF, Tab 1 at 3 -4. On October 20,
2021, OPM moved to dismiss the appeal for lack of jurisdiction because it had
rescinded its final decision. IAF, Tab 16 at 4. OPM asserted that it would audit
the appellant’s annuity calculation and overpayment , issue a new final decisio n,
3
and “ha[d] authorized a refund of all money collected from [him] .” Id. As a
result of OPM’s rescission , the administrative judge issued an order to the
appellant to show cause why the Board has jurisdiction over his appeal , to which
the appellant resp onded . IAF, Tab s 17-18. The administrative judge issued an
initial decision, finding that OPM’s rescission of its final decision divested the
Board of jurisdiction over the appeal. IAF, Tab 19, Initial Decision (ID) at 7.
¶4 The appellant has filed a timel y petition for review. Petition for Review
(PFR) File, Tab 1.2 The agency has filed a nonsubstantive response. PFR File,
Tab 4 .
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 The appellant alleges on review that OPM refunded the money it collected
from his September and October 2021 annuity payments but failed to refund
$5,827.00 that it withheld to reduce the alleged overpayment from $24,614 .00 to
$18,787.00. PFR File, Tab 1 at 4 -6. When OPM completely rescinds a
reconsideration decision, the Board no longer has j urisdiction over the appeal in
which that decision is at issue. Campbell v. Office of Personnel Management ,
123 M.S.P.R. 240 , ¶ 7 (2016). A complete rescission requires OPM to return the
appellant to the status quo ante. Id. Thus, to rescind a final overpayment
decision such as the one at issue in the instant appeal, OPM must refund any
money that it already collected from the ap pellant to recoup the alleged
overpayment. Id., ¶ 8.
¶6 We disagree with the administrative judge that OPM’s rescission of the
final decision divests the Board of jurisdiction here because the record is devoid
of evidence that OPM has returned the appellant to the status quo ante. Although
OPM stated that it rescinded the final decision and intended to audit the
2 The appellant has filed a motion for leave to submit additional information and
documentation . PFR File, Tab 6. Because the parties will have an opportunity to
further develop the record on remand, we find it unnecessary to rule on the appellant’s
motion for leave.
4
appellant’s case and issue a new decision , it has not responded to his contention
that it did not refund all of the previously withheld funds. PFR File, Tab 1 at 4 -6,
Tab 4; IAF, Tab 10 at 4 -5. Therefore, we find that OPM has failed to establish
that it returned the appellant to the status quo ante and the administrative judge
erred in dismissing the appeal as it concerns the annuity calculation and related
overpayment issue. See Martin v. Office of Personnel Management , 119 M.S.P.R.
188, ¶¶ 2, 6, 10 (2013) (declining to dismiss an appeal of an allegedly rescinded
reconsideration decision because, in part, the appellant asserted, and OPM did not
dispute, that she ha d not received repayment of the funds that the Office of
Workers’ Compensation withheld from her workers’ compensation benefits to
repay the annuity overpayment at OPM’s request). Accordingly, this issue
remains within the Board’s jurisdiction.
¶7 Based on t he record, it is unclear if and when OPM withheld the alleged
$5,827.00 toward the appellant’s debt. IAF, Tab 1 at 7, 10 -11. Nonetheless,
because there is no indication that OPM afforded the appellant status quo ante
relief, we find it necessary to reman d this matter to the regional office for further
devel opm ent of the record on the jurisdictional issue and , if appropriate,
adjudication on the merits. See Campbell , 123 M.S.P.R. 240 , ¶¶ 11 -12
(remanding the appeal because the Board was unable to determine whether OPM
has returned the appellant to the position in which she would have been had the
final decision not been issued). If the administrative judge finds that OPM has
repaid the alleged withheld amount, he may once again dismiss the appeal for
lack of jurisdiction. Id., ¶ 11.
5
ORDER
¶8 For the reasons discussed above, we remand this case to the regional office
for further adj udication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SWAIN_HOUSTON_E_SF_0845_21_0484_I_1_REMAND_ORDER_1986551.pdf | 2022-12-15 | null | SF-0845 | NP |
3,878 | https://www.mspb.gov/decisions/nonprecedential/ELLIGAN_ANTHONY_G_AT_0842_17_0428_I_1_FINAL_ORDER_1986562.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANTHONY G. ELLIGAN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-0842 -17-0428 -I-1
DATE: December 15, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Anthony G. Elligan , Conley, Georgia, 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 final decision of the Offi ce of Personnel Management , finding that
he was ineligible for an annuity under the Federal Employees’ Retirement System
because he requested and received a refund of his retirement contributions . On
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
petition f or review, the appellant argues that he was misled by officials of his
former employing agency and that he believed that the payment he received was a
severance payment, and not a refund of retirement contributions. Petition for
Review File, Tab 1 at 3 -5. 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 aff ected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Boar d’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIGHTS2
You may obtain re view of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situat ion and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot adv ise which option is most appropriate in any matter.
3
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claim s and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If 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 ru le, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you m ust file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be e ntitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respe ctive
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employme nt
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal 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 personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C ), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
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
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.
Contact information for the 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 | ELLIGAN_ANTHONY_G_AT_0842_17_0428_I_1_FINAL_ORDER_1986562.pdf | 2022-12-15 | null | AT-0842 | NP |
3,879 | https://www.mspb.gov/decisions/nonprecedential/TUCKER_PAMELA_D_CH_0752_13_0421_B_1_FINAL_ORDER_1985073.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PAMELA D. TUCKER,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-0752 -13-0421 -B-1
DATE: December 12, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Pamela D. Tucker , Riverside , Ohio, pro se.
Matthew O. Kortjohn , Dayton, Ohio, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant ha s filed a petition for revie w of the initial decision, which
sustained her removal for failure to follow instructions and found that she did not
prove her affirmative defenses . Generally, we grant petitions such as this one
only when: the initial decision contains erroneous findings of material fact; the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required t o follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
initial decision is based on an erroneous interpretation of statute or regulation or
the erroneous application of the law t o the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review . Except as expressly MODIFIED by this Final Order to reflect
that we are assuming without deciding that the appellant is a qualified individual
with a disability , we AFFIRM the initial decision , which is now the Board’s final
decision.
BACKGROUND
¶2 The agency imposed the appellant’s removal from her Administrative
Support Specialist position based upon one charge of failu re to follow
instructions with five underlying specifications detailing her failure to report to
her assigned work area . Tucker v. Department of Veterans Affairs , MSPB Docket
No. CH -0752 -13-0421 -I-1, Initial Appeal File (IAF), Tab 8, Subtabs 4 a-4b. The
appellant filed the instant appeal and requested a hearing. IAF, Tab 1. After
holding a hearing, the administrative jud ge issued an initial decision sustaining
the removal. IAF, Tab 38, Initial Decision. The Board vacated the initial
decision and remanded the appeal for further development. Tucker v. Department
of Veterans Affairs , MSPB Docket No. CH -0752 -13-0421 -I-1, Remand Order
(Aug. 15 , 2014). On remand, another administrative judge held a second hearing.
Tucker v. Department of Veterans Affairs , MSPB Docket No. CH -0752 -13-0421 -
B-1, Remand File (RF), Tab 47, Hearing Compact Disc. She issued an initial
3
decision sustaining the appellant’s removal and finding that she did not prove her
affirmative defenses of age discrimination, retaliation for equal employment
opportunity (EEO) activity, failure to accommodate, disparate treatment disability
discrimination, and whis tleblower reprisal . RF, Tab 42, Remand Initial Decision
(RID). The appellant has filed a petition for review and the agency has
responded. Remand Petition for Review ( RPFR) File, Tabs 1, 3.
DISCUSSION OF ARGU MENTS ON REVIEW2
¶3 First, the appellant asserts that the administrative judge erred in sustaining
the charge because her office was dangerous and because she actually reported for
duty at another location on the days that the agency specified she was absent .
RPFR File, Tab 1 at 9, 11 . To prove a charge of failure to follow instructions, an
agency must establish that the employee was given proper instructions and she
failed to follow the instructions, without regard to whether the failure was
intentional or unintentional. Arche rda v. Department of Defense , 121 M.S.P.R.
314, ¶ 16 (2014). Even when the employee may have substantial reason to
question the instructions, absent unusual circumstances, such as whe n obedience
would cause h er irreparable harm or place h er in a clearly dangerous situation, an
employee must first comply with the instructions and then, if she disagrees with
them, register h er complaint or grievance lat er. Pedel eose v. Department of
Defense , 110 M.S.P.R. 508 , ¶¶ 16, 18 , aff’d, 343 F. App’x 605 (Fed. Cir. 2009);
Larson v. Department of the Army , 91 M.S.P.R. 511 , ¶ 21 (2002).
¶4 The agency charged the appellant with failure to follow instructions based
upon five underlying specifications when she failed to report to her assigned work
area on December 17, 18, 19, and 31, 2012, and January 22, 2013 . IAF, Tab 8,
Subtabs 4a-4b. As the administrative judge found , the record is clear and the
appellant did not dispute that she was given the instruction to return to her office.
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.
4
RID at 6 ; IAF, Tab 3 at 46 . Under the particular circumstances of this case , we
cannot find that the danger to the appellant justified her failure to follow the
instructions .
¶5 We have considered that the appellant failed to meet with the agency’s
industrial hygienist when invited to do so to address her concerns about her work
area. RID at 7; IAF, Tab 3 at 105, 108 ‑09. Although the appellant submitted a
letter from a nurse practitioner, when the agency asked for additional information
to determine the cause and nature of her health condition , including sending a
letter to the nurse practitioner, the appellant did not provide the information . RID
at 13 -15; IAF, Tab 3 at 51, 77, 96. Accor dingly, we find that the evidence does
not show that the instructions were invalid or that the appellant was entitled to
disregard them based upon a danger to her health. T hus, the administrative judge
properly found that the agency proved by preponderant evidence the failure to
follow instructions charge . See Maulding v. Department of Health & Human
Services , 42 M.S.P.R. 6 05, 611 (1989) (sustaining a failure to follow instructions
charge when the employee failed to report to the agency’s laboratory as instructed
due to her claimed chemical sensitivity and she did not present sufficient
evidence in support of her claims ), aff’d, 961 F.2d 694 (8th Cir. 1992); see also
White v. Department of Housing & Urban Development , 95 M.S.P.R. 299 ,
¶¶ 21-25 (2003).
¶6 The appellant next asserts that the agency discriminated against her by
failing to reasonably accommodate her .3 RPFR File, Tab 1 at 10 -12, 14-18, 23 .
Assuming, without deciding, that the appellant is a qualified individual with a
3 In support of her disability discrimination claim , the appellant has submitted a
July 4, 2015 letter from the Social Security Administration , which she states was not
available prior to the hearing . RPFR File, Tab 1 at 2-4. This evidence is not new
because the letter was issued prior to the initial decision. Furthermore, it is not
material because it provides no further information as to the nature and extent of the
appellant’s conditions. 5 C.F.R. § 1201.115 (d); see generally Givens v. Office of
Personnel Management , 95 M.S.P.R. 120 , ¶ 9 (2003).
5
disability, we find that she did not establish this affirmative defense because she
failed to engage in the interactive process to determine an appropriate
accommodation .4 Rosario -Fabregas v. Department of the Army , 122 M.S.P.R.
468, ¶ 18 (2015) , aff’d, 833 F.3d 1342 (Fed. Cir. 2016) .
¶7 As previously stated, the appellant failed to attend a meeting with the
industrial hygienist and did not provide the agency with the medical information
that it requested. IAF, Tab 3 at 51, 77, 105, 108 -09, Tab 8, Subtab f. Below , and
on review, the appellant object ed to being required to provide additional medical
information to the agency. RPFR File, Tab 1 at 25 -26; IAF, Tab 1 at 16 . Havi ng
reviewed the record, it appears that the appellant provided the agency with two
pieces of medical documentation . The first concerned her service -connected
disabilities of ventricular arrhythmia and limitations in knee flexion . IAF, Tab 3
at 71. Howev er, these conditions do not appear to have any bearing on the
functional limitation at issue or on the accommodation that the appellant was
requesting. The second was a letter from her primary care provider that
essentially relayed the appellant’s self -report of a suspected mold problem in her
assigned office.5 Id. at 52. The agency promptly responded with a request for
additional information, i ncluding a medical diagnosis and how the diagnosed
condition might interfere with the appellant’s ability to wo rk in her assigned
office. Id. at 47, 79. The appellant never responded to the inquiry but continued
to insist that the agency had all the information that it needed to rule on her
4 The administrat ive judge found that the appellant failed to show that she was a
qualified individual with a disability as defined by 29 C.F.R. § 1630.2 (g), (m).
RID at 16. We modify the initial decisi on in this respect because, since we are finding
that the appellant failed to engage in the interactive process, it is not necessary to
address this issue. See Miller v. Department of the Army , 121 M.S.P.R. 189 , ¶ 14
(2014).
5 The appellant’s work area was evaluated both by the agency’s Industrial Hygiene and
Safety perso nnel and a private environmental services company, neither of which
detected any air quality problems or indications of moisture or mold . IAF, Tab 3
at 106, 109-10
6
request . Id. at 86 -88. The agency subsequently informed the appellant t hat it
needed her to supply medical information from “a qualified physician.” Id. at 27,
47-48. We do not reach the issue of whether the appellant’s treating nurse
practitioner was “an appropriate health care or rehabilitation professional” to
supply this information under the Equal Employment Opportunity Commission’s
(EEOC) official guidance. EEOC Enforcement Guidance : Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act,
No. 915.002 , at Question 6 (Oct. 17, 2002). Even if she were, the documentation
letter that she prepared was insufficient for the agency to determine whether the
appellant had a disability that needed accommodation. See id. Accordingly, we
agree with the administrative judge that, because the appellant failed to provide
the medical information and documentation requested by the agency and to
otherwise partici pate in the interactive process, the agency did not fail to
accommodate her . RID at 18; see Howerton v. Department of the Army , EEOC
Appeal No. 0120113177, 2013 WL 3149195, at *3-4 (June 12, 2013).
¶8 The appellant further asserts that she was subject to disparate treatment
based upon her disability and that agency officials knew about her request for a
reasonable accommodation when they removed her. RPFR File, Tab 1 at 18-20.
Again, assuming, without deciding, that the appellant is a qualified individual
with a disability, we agree with the administrative judge that the appellant failed
to show that her disability was a m otivating factor in her removal. She did not
present evidence that she w as treated differently than non disabled employees,
provide evidence that her alleged disability played a role in the deciding official’s
decisio n, or otherwise show a discriminatory animus on the part of the agency.6
6 The appellant disagrees with the administrative judge’s finding that she did not prove
her age discrimination claim. RPFR File, Tab 1 at 26. The administrative judge found,
among other things, that the appellant did not even allege that she was treated
differently than an employee under age 40 and there was no evidence indicating pretext
in the agency’s removal decision. RID at 9; Hearing Transcript (HT) at 13-14
(testimony of the deciding official). Accordingly, we agree with the administrative
7
RID at 18 -19; see Pridgen v. Office of Management & Budget , 2022 MSPB 31 ,
¶ 40.
¶9 The appellant argues that the administrative judge erred in failing to find
that the agency retaliated against her for her prior EEO activity.7 RPFR File,
Tab 1 at 5, 27 -28. Specifically, she asserts that the agency charged her with
failure to follow instructions to report to her assigned work area on a date when
interviews were being conducted regarding her EEO complaint. Id. at 27 -28.
¶10 Based upon the deciding official’s demeanor, the administrative judge
credited her testimony that, although she was aware of the appellant’s EEO
activity, this did not play a role in her decision to remove the appellant.
RID at 11; RF, Tab 45, Hearing Transcript (HT) at 12 -13 (testimony o f the
deciding official) . The Board generally will defer to this determination, which is
explicitly based up on observing the demeanor of the witness testifying at the
hearing , and we do not find sufficiently sound reasons for overturning that
determinatio n. Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir.
2002). Further, we find that the appellant’s assertion regarding the timing of the
EEO interviews does not evidence the type of suspicious timing that would
support a finding that her EEO complaint was a motivating factor in the agency’s
decision to remove her. See Savage v. Department of the Army , 122 M.S.P.R.
612, ¶ 42 (2015) , overruled on other grounds by Pridgen , 2022 MSPB 31 ,
¶¶ 23-25. We also agree with the administrative judge that the appellant did not
show the following: (1) the deci ding official had a motivation to retaliate against
her; (2) a causal link between her EEO activity and the removal decision; (3) the
charges were not actually the r eason for the agency’s action; or (4) there was
comparator evidence that supported her clai m. RID at 11 -12. Thus, the appellant
judge that the appellant failed to prove her age discrimination claim. 29 U.S.C.
§ 633a (a); see Wingate v. U.S. Postal Service , 118 M.S.P.R. 566 , ¶¶ 7-9 (2012).
7 The basis for her EEO complaint was race and disability discrimination and reprisal.
RF, Tab 11 at 13 -14.
8
failed to establish her claim of EEO retaliation.8 Gardner v. Department of
Veterans Affairs , 123 M.S.P.R. 647, ¶ 34 (2016) , clarified by Pridgen ,
2022 MSPB 31 , ¶¶ 23-24.
¶11 The appellant asserts , moreover, that she proved her whistleblower
retaliation claim and states that the administrative judge erred by considering her
disclosure to her congressman as having occurred prior to the effective date of the
Whistleblower Protection Enhancement Act of 2 012, Pub. L. No. 112-199,
126 Stat. 1465 . RPFR File, Tab 1 at 9, 28 -29. We find that the date of the
appellant’s disclosure does not affect the administrative judge’s findings
regarding her whistleblower retaliation claim, because the administrative judge
found, and we agree , that the deciding official had no knowledge of this
disclosure. RID at 21 -22; HT at 7 -8 (testimony of the deciding official) . The
appellant has not otherwise provided a reason to disturb the administrative
judge’s finding that, because of the strong evidence in support of the removal and
a lack of motive to retaliate, the agency proved by clear and convincing evidence
that it would have removed her, regardless of her whistleblowing disclosures .9
8 Because we affirm the administrative judge’s finding that the appellant failed to meet
her initial burden to prove that disparate treatment disability discrimination and
retaliation for EEO activity (based on race discrimination and reprisal) were motivating
factors in her removal, we need not resolve whether the appellant proved that her EEO
activity was a “but -for” cause of the agency’s decision . See Pridgen , 2022 MSPB 31 ,
¶¶ 20-22, 30, 40, 42.
The appellant’s prior EEO activity also involved complaining of disability
discrimination. RF, Tab 11 at 11 -27. Such activity is protected by the Americans with
Disabilities Act, as amended by the Americans with Disabilities Act Amendments Act,
the standards of which have be en incorporated by reference into the Rehabilitation Act.
29 U.S.C. § 791(f); 42 U.S.C. § 12203 (a); Pridgen , 2022 MSPB 31 , ¶¶ 35, 44. This
type of claim requires the appellant to prove “but -for” causation as her initial burden.
Pridgen , 2022 MSPB 31 , ¶¶ 46-47. Because we affirm the administrative judge’s
finding that she did not meet her initial burden to prove motivating factor, we also find
that she would be unable to prove “but -for” causation.
9 The appellant also argues that her removal does not promote the efficiency of the
service because she was willing to work in a different location or with protective
equipment. RPFR File, T ab 1 at 29 -30. However, the deciding official testified that the
appellant’s misconduct had a negative effect on the agency, HT at 15 (testimony of the
9
RID at 22 -25; HT at 7 -8, 14 (testimony of th e deciding official) ; see McCarthy v.
International Boundary & Water Commission , 116 M.S.P.R. 594, ¶ 66 (2011),
aff’d, 497 F . App’x 4 (Fed. Cir. 2012) .
¶12 The appellant next argues that the deciding official did not consider all of
the relevant mitigating factors in assessing the penalty . RPFR File, Tab 1 at 10,
30-31. However, we agree with the administrative judge that the deciding official
credibly testified that she weighed the relevant Douglas factors and the decision
letter also reflects that she considered such factors as the appellant’s length of
service and pa st work record , her potential for rehabilitation, the seriousness of
the offenses with which she had been charged, prior discipline in the form of two
recent suspensions for similar misconduct, the impact of her absence on the
agency’s operations, and simi lar penalties imposed upon other employees . RID
at 27-28; HT at 5-7 (testimony of the deciding official) ; IAF, Tab 8, Subtab 4a .
Accordingly, we agree with the administrative judge that removal is a reasonable
penalty. See Archerda , 121 M.S.P.R. 314 , ¶¶ 25-27 (sustaining the appellant’s
removal for failure to follow instructions to provide additional medical
information that the agency requested) ; Bowen v. Department of the Navy ,
112 M.S.P.R. 607 , ¶ 19 (2009) (sustaining the appellant’s removal for failure to
follow instructions, absence without leave , and insubordination), aff’d,
402 F. App’x 521 (Fed. Cir. 2010) (Table) .
¶13 Finally , the appellant asserts on review , among other things, that the
administrative judge improperly weighed the hearing testimony and tha t she
should have considered that the appellant was awarded unemployment benefits .
RPFR File, Tab 1 at 5 -6, 9-10, 31 -32. These assertions constitute mere
disagreement with the initial decision and thus do not provide a reason for
deciding official), and the Board has consistently held that an employee’s failure to
follow instructio ns relates directly to the efficiency of the service, see, e.g. , Archerda ,
121 M.S.P.R. 314 , ¶ 24.
10
disturbing it. Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 105‑06 (1997) ; RID
at 4-7, 11-19, 22 -26.
NOTICE OF APPEAL RIG HTS10
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requ irements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Bo ard order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
10 Since the issuance of the in itial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
11
If you submit a petition for review to the U.S. Court of Appeals for the
Federal 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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that 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
12
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to wa iver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed th rough the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you recei ve
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Was hington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5 SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
13
other protected activities listed 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 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.11 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “ Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circui t, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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 fil e petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
14
Board neither endorses the services provided by any attorney nor 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 | TUCKER_PAMELA_D_CH_0752_13_0421_B_1_FINAL_ORDER_1985073.pdf | 2022-12-12 | null | CH-0752 | NP |
3,880 | https://www.mspb.gov/decisions/nonprecedential/UKANDU_VALENTINE_AT_0752_21_0261_I_1_REMAND_ORDER_1984339.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
VALENTINE UKANDU,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.
DOCKET NUMBER
AT-0752 -21-0261- I-1
DATE: December 8, 2022
THIS ORDER IS NONPRECEDENTIAL1
Matthew Fogg, Washington, D.C., for the appellant.
Sandra Fortson , Esquire, Joint Base Andrews, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal. For the reasons discussed below, we GRANT the
appellant’s petition for review, VACATE the initial decision, and REMAND the
case to the Atlanta Regional Office for further adjudication in accordance with
this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c)
.
2
BACKGROUND
¶2 The appellant was employed as a GS- 13 Contract Specialist with the
agency. Initial Appeal File (IAF), Tab 10 at 20. A Defense Acquisition
Workforce Improvement Act (DAWIA) Level II certification is a requirement for
a GS-13 Contract Specialist. IAF, Tab 20 at 2 (setting forth the parties’
stipulations). E ffective March 2, 2021, the agency remove d the appellant from
the Federal service based on the charges of failure to maintain a condition of
employment (1 specification) and lack of candor (2 specifications). IAF, Tab 7
at 22-30. The agency alleged that the appellant did not maintain a condition of
employment because he did not possess a DAWIA Level II certification and that
he lacked candor when he misstated his level of certification in the job
application process. Id. at 22- 23.
¶3 The appellant filed a Board appeal challenging his removal. IAF, Tab 1.
He also raised affirmative def enses of harmful procedural error, prohibited
personnel practices, unlawful discrimination, and retaliation for other protected activity. Id. at 3. The administrative judge issued an order informing the
appellant how to prove his affirmative defenses, IAF, Tab 14 at 2- 9, and an order
setting forth the burden of proof and elements for the agency’s charges of failure
to maintain a condition of employment and lack of candor. IAF, Tab 20 at 1- 2.
¶4 After holding the appellant’s requested hearing, the administrative judge
issued an initial decision that affirmed the appellant’s removal. IAF, Tab 25, Initial Decision (ID) at 1, 15. The administrative judge sustained the charge of failure to maintain a condition of employment because he found that a DAWIA
Level II certification was required for contract specialists at or higher than
GS-11, and the appellant’s Level II certification was revoked in 2012.
2 ID at 3- 6.
2 The agency’s Acquisition Professional Development Program (APDP) C ertification
Manager explained that the appellant was given a DAWIA Level II certification
erroneously be fore the process for agency acquisition certifications became automated
in 2012. IAF, Tab 23, Hearing Recording Day 1 (HR1) (testimony of the APDP
Certification Manager). The appellant’s certification was deleted from the agency’s
3
He noted that when, as here, there is no evidence of bad faith or patent unfairness,
the Board defers to the agency’s determinations as to the requirements that must
be fulfilled in order for an individual to qualify for appointment to a particular
position and to retain that position. ID at 6. The administrative judge sustained
the charge of lack of candor, reasoning that the appellant made a knowing
misrepresentation concerning his DAWIA Level II certification in applying for a
Supervisory Contract Specialist position in October 2020 and in providing
documents to an agency human resources employee showing that he had a
Level II certification in November 2020. ID at 7- 8. He found that the appellant
failed to prove his claims of race, national origin , and age discrimination,
retaliation for equal employment opportunity (EEO) activity, and harmful
procedural error. ID at 8-13. Finally, the administrative judge found that the
agency proved nexus and that removal was a reasonable penalty . ID at 13-14.
¶5 The appellant has filed a petition for review of the initial decision.3
Petition for Review (PFR) File, Tab 2. He sets forth his extensive training in
procurement matters, and he claims that he met the requirements for a DAWIA
system in 2012 due to the appellant’s incomplete training, i.e., he had not completed a
contracting cou rse. Id. The agency’s T raining and Certification Help Desk Manager
testified that he disc overed that the appellant had not completed the requirements for
DAWIA Level II certification in 2019 or 2020 when the appellant sought to attend
training for DAWIA Level III certification. HR1 (testimony of the agency’s T raining
and Certification Help Desk Manager).
3 The appellant asserts that, although the agency removed his DAWIA Level II
certification in 2011, he believed that the agency reinstated his Level II certification, in accord with a settlement agreement executed with the agency in 2014, but the agency did not do so. Petition for Review ( PFR ) File, Tab 2 at 5. The administrative judge
correctly noted, in a compliance initial decision, that there was no term in that agreement that required the reinstatement of the appellant’s DAWIA Level II
certification. See Ukandu v. Department of the Air Force , MSPB Docket Nos. CH -
531D -13-0343- C-2, CH -0432 -13-0372 -C-2, Compliance Initial Decision at 4 -5
(June 22, 2021).
4
Level II certification. Id . at 4-5. The agency has filed a response.4 PFR File,
Tab 4.
ANALYSIS
¶6 The charge of failure to fulfill a condition of employment contains two
elements: (1) the requirement at issue is a condition of employment; and (2) the
appellant failed to meet that condition. Gallegos v. Department of the Air
Force, 121 M.S.P.R. 349 , ¶ 6 (2014). Absent evidence of bad faith or patent
unfairness, the Board defers to the agency ’s requirements th at must be fulfilled
for an individual to qualify for appointment to, or retention in, a particular
position. Id.
¶7 In this appeal, the condition of employment at issue is a DAWIA Level II
certification. IAF, Tab 7 at 22. It is undisputed that the certification is a
requirement for the appellant’s position, and thus, the first element of the charge
is satisfied. IAF, Tab 20 at 2 . The issue is whether the second element— that the
appellant failed to meet a condition of employment— is satisfied.
¶8 On review, the appellant reiterates that he met the requirements for a
DAWIA Level II certification. PFR File, Tab 2 at 4. The administrative judge
considered the appellant’s testimony on the matter, but he found that the agency’s
Training and Certification Help Desk Manager credibly testified that the
academic documentation submitted by the appellant was not adequate equivalent coursework to support substitution for the agency’s coursework requirements. ID at 5; IAF, Tab 23, Hearing Recording Day 1 (HR1) (testimony of the agency’s
Training and C ertification Help Desk Manager). Thus, the administrative judge
4 Nearly a year after the close of the record on petition for review, the appellant filed a
reply to the agency ’s response to the petition for review. PFR File, Tab 5. Because the
appellant has not shown that the arguments in the pleading are new and material and
that they could not have been raised prior to the close of the record, we have not accepted them for consideration. See 5 C.F.R. § 1201.114(k)
. As we are remanding
this matter, the appellant may make his arguments in the remand proceeding consistent with the administrative judge’s instructions and the Board’s regulations.
5
found that the appellant failed to meet the agency’s requirement and that the
agency proved its charge of failure to maintain a condition of employment. ID
at 6.
¶9 However, in appeals such as this, when the agency controls the withdrawal
or revocation of a certification necessary to perform in a position, the Board’s
authority generally extends to a review of the merits of that withdrawal or
revocation. Adams v. Department of the Army , 105 M.S.P.R. 50 , ¶¶ 10, 19
(2007), aff’d , 273 F. App’x 947 (Fed. Cir. 2008). Specifically, i n Adams, the
agency suspended the appellant’s computer access and then removed him for
failure to maintain access to the agency’s computer system. Id., ¶ 6. Although
the agency in that appeal argued that the Board lacked the authority to review the
merit s of the decision to suspend computer access because it was not an
appealable adverse action, the Board found that, when a removal is based on the
failure to possess a certification or similar qualification, it had the authority to review the merits of the agency’s revocation of the certification or similar
qualification necessary for the employee to hold his position.
5 Id., ¶¶ 9-10.
¶10 Similarly, in Siegert v. Department of the Army , 38 M.S.P.R. 684 , 685- 86
(1988), the agency revoked the appellant’s clinical privileges and then removed
him from his Clinical Psychologist position for failure to maintain those
privileges. The Board found that it had the authority to review the actions of the
agency credentialing committee and remanded the appeal to the administrative judge to address that issue. Id. at 691. Finally, in a case very similar to the
instant appeal, McGillivray v. Federal Emergency Management Agency,
58 M.S.P.R. 398, 402 (1993), the agency removed the appellant based on the loss
of his procurement authority , and the Board found that it had the authority to
5 The certification at issue in this appeal and in the appeals discussed in this decision do
not involve national security determinations, over which the Board lacks jurisdiction.
Adams , 105 M.S.P.R. 50, ¶ 11; see Department of the Navy v. Egan, 484 U.S. 518 ,
530- 31 (1988).
6
consider the reasons underlying the agency’s decision to revoke the employee’s
procurement authority.6
¶11 Because the administrative judge failed to fully identify the issues in this
appeal, and the parties did not have the opportunity to fully develop the record on
those issues, remand is required. On remand, the administrative judge shall afford the parties the opportunity to conduct discovery and submit additional evidence and argument. The administrative judge shall hold a supplemental hearing, if requested by the appellant, and shall issue a new initial decision
addressing the agency’s charges,
7 nexus, penalty, and the appellant’s affirmative
defenses.8 See Spithaler v. Office of Perso nnel Management, 1 M.S.P.R. 587 , 589
(1980) (stating that a n initial decision must identify all material issues of fact and
law, summarize the evidence, resolve issues of credibility, and include the
6 The Boar d has followed the principle applied in Adams , Siegert , and McGillivray in
other cases . See, e.g. , Jacobs v. Department of the Army , 62 M.S.P.R. 688 , 694 -95
(1994) (reviewing a security guard’s disqualification from the agency’s Chemical
Personnel Reliability Program based on his alleged misconduct); Cosby v. Federal
Aviation Administration , 30 M.S.P.R. 16 , 17- 19 ( 1986) (reviewing an Air Traffic
Control Specialist’s decertification under the agency’s medical standards).
7 On petition for review, the appellant does not spec ifically challenge the administrative
judge’s determination that the agency proved the lack of candor charge. Because we are remanding the case for further proceedings regarding the charge of failure to maintain a condition of employment, the administrative judge should determine on remand whether any additional evidence developed on remand affects his analysis of the lack of candor charge. If he determines that new findings regarding the lack of candor charge are not needed, the administrative judge may adopt his prior findings regarding that charge in his new initial decision.
8 Regarding the appellant’s affirmative defenses of race, national origin, and age
discrimination and retaliation for prior EEO activity, the administrative judge should
apply the standards of proof set forth in Pridgen v. Office of Management & Budget ,
2022 MSPB 31, ¶¶ 21-22. The administrative judge shall apprise the appellant that,
although he may prevail on these claims by showing that the prohibited consideration was a motivating factor in the contested personnel action, but -for causation i s required
in order for him to obtain full status quo ante relief , including reinstatement, back pay,
and damages . See id. , ¶¶ 21-22, 24 n.5. Furthermore, the appellant should be aware
that there are multiple methods of proof for a discrimination or reprisal claim. See id. ,
¶ 24.
7
administrative judge’s conclusions of law and legal reasoning, as well as the
authorities on which that reasoning rests) .
ORDER
¶12 For the reasons discussed above, we remand this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | UKANDU_VALENTINE_AT_0752_21_0261_I_1_REMAND_ORDER_1984339.pdf | 2022-12-08 | null | AT-0752 | NP |
3,881 | https://www.mspb.gov/decisions/nonprecedential/MCCARDLE_TREVOR_SF_0752_16_0689_I_3_FINAL_ORDER_1984041.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TREVOR MCCARDLE,1
Appellant,
v.
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSI ON,
Agency.
DOCKET NUMBER
SF-0752 -16-0689 -I-3
DATE: December 7, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL2
Michal B. Shinnar , Esquire and Renn C. Fowler , Esquire, Silver Spring,
Maryland, for the appellant.
1 After the petition for review submissions were filed, the appellant’s attorney filed a
motion for substitution, explaining that Mr. McCardle died on August 4, 2019, and
requesting that Yolanda Acuna, Mr. McCardle’s sole heir, be substituted in his place.
Petition for Review File, Tab 9. The motion includes a letter of instruction from
Ms. Acuna, a California death record from Lexis -Nexis, and a declaration made under
penalty of perjury from Ms. Acuna. Id. at 5-7. If an appella nt dies, the processing of
an appeal will only be completed upon substitution of a proper party. 5 C.F.R.
§ 1201.35 (a). Motions to substitute must be filed with the Board within 90 days after
the death of a party except for good cause shown. 5 C.F.R. § 1201.35 (b). The
appellant’s attorney filed the motion to substitute on March 3, 2022, which was more
than 90 days after Mr. McCardle’s death. However, in the absence of a timely
substitution of a party, the processing of an appeal may continue if the interests of the
proper party w ill not be prejudiced. 5 C.F.R. § 1201.35 (c). No such prejudice exists
here, and the agency has not opposed the motion; thus, we find it appropriate to
continue with the processing of this appeal. Both Ms. Acuna and Mr. McCardle will be
referred to as “ the appellant.”
2 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dist inguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Anabia Hasan , Washington, D.C., for the agency.
Leroy T. Jenkins, Jr , Washington, Delaware, for the agency.
Maneesh Varma , Birmingham, Alabama, 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 appellant has filed a petition for review of the initial decision, which
sustained his removal from the agency for various acts of misconduct and found
that he did not prove any of his affirmative defenses . Generally, we grant
petitions such as this o ne 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 ca se; 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 mate rial 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. However,
we REVERS E those portions of the initial decision which sustain ed
specification 2 of the misuse of G overnment resources charge and which found
that the appellant did not make a whistleblowing disclosure. We MODIFY the
3
initial decision (1) to hold that the age ncy did not prove specification 2 of the
misuse of Government resources charge, (2) to find that the appellant proved that
his whistleblowing disclosure was a contributing factor to his removal, but the
agency proved by clear and convincing evi dence that it would have removed him
in the absence of such disclosure , and ( 3) to reanalyze t he appellant’s equal
employment opportunity ( EEO ) retaliation and disability discrimination claims in
light of more recent case law . Notwithstanding these modifi cations, we sustain
the misuse of Government resources charge, and we find that the appellant did not
prove his reprisal affirmative defenses. Except as expressly MODIFIED by this
Order, we AFFIRM the initial decision.
BACKGROUND
¶2 The following facts, as recited in the initial decision, are generally
undisputed . McCardle v. Equal Employment Opportunity Commission , MSPB
Docket No. SF-0752 -16-0689 -I-3, Appeal File, Tab 11, Initial Decision (ID).
Effective October 16, 2015, the agency removed the appellant from his Paralegal
Specialist position under 5 U.S.C. chapter 75 based on charges of improper
conduct, misuse of the agency’s email system, and misuse of Government
resources. McCardle v. Equal Employment Opportunity Commission , MSPB
Docket No. SF-0752 -16-0689 -I-1, Init ial Appeal File (IAF), Tab 5 at 44-56,
146-53. The appellant filed an EEO complaint with the agency , in which he
alleged that his removal was based o n discrimination and retaliation. IAF, Tab 1
at 21-24. Because the agency did not issue a final agency decision on the
appellant’s EEO complaint within 120 days, he filed a Board appeal contesting
his removal and raising various affirmative defenses . IAF, Tab 1; ID at 2; see
5 C.F.R. § 1201.154 (b)(2).
¶3 A multi -day hearing was held. McCardle v. Equal Employment Opportunity
Commission , MSPB Docket No. SF-0752 -16-0689 -I-2, Appeal File (I -2 AF)
Hearing Transcripts (HTs) ; ID at 2. The administrative judge issued a 75 -page
4
initial decision, in which he found that the agency proved all three charges of
misconduct, and the appellant failed to prove his affirmative defenses of sex
discrimination, disability discrimination (based on a perceived disability),
retaliation for EEO a ctivity, re prisal for whistleblowing disclosures and/or
protected activity, and due process violation s. ID at 8-63. The administrative
judge further found that there was a nexus between the appellant’s misconduct
and the efficiency of the service and that the removal penalty was reasonable
under the circumstances . ID at 63-68. Following, the appellant filed a petition
for review, to which the agency filed a response, and the appellant filed a reply.
Petition for Review ( PFR ) File, Tabs 3, 7-8.
DISCUS SION OF ARGUMENTS ON REVIEW3
¶4 In an appeal before the Board of a removal taken under 5 U.S.C. chapter 75,
an agency bears the burden to prove by preponderant evidence the charged
misconduct, a sufficient nexus between the charge and the efficiency of the
service, and the reasonableness of the imposed penalty . Pope v. U.S. Postal
Service , 114 F.3d 1144 , 1147 (Fed. Cir. 1997) ; see 5 U.S.C. §§ 7513 (a),
7701(c)(1)(B) .
The improper conduct charge is sustained.4
¶5 The improper conduct charge contained a single narrative specification
alleg ing that the appellant made statements that disrupted the workplace. IAF,
3 On review, the appellant does not challenge the administrative judge’s finding that he
failed to prove his disparate treatment sex discrimination claim. ID at 43; PFR File,
Tabs 3, 8. We find no reason to dis turb this finding and therefore affirm it.
4 The agency is not required to affix a label to a charge of misconduct; it may simply
describe actions that constitute misbehavior in narrative form in its charge letter.
Otero v. U.S. Postal Service , 73 M.S.P.R. 198 , 202 (1997). However, if the agency
chooses to label an action of alleged misconduct, then it must prove the elements that
make up the legal definition of the charge, if any. Id. Accordingly, because the agency
generically labeled each of the charges in the appellant’s removal and provided a
narrative account of the specifications, it was appropriate for the administrative judge
to assess whether the agency met its burden of proving that the appellant engaged in the
conduct for which he was charged. IAF, Tab 5 at 146-50; ID at 8, 26, 28.
5
Tab 5 at 146-48. The narrative describing the charge included the following
allegations : (1) the appellant said to a coworker that he felt like he was “go nna
fucking kill someone” ; (2) he said to the same coworker that , if he could, he
would “take . . . out” his first - and second -level supervisors; (3) he sent an
agency -wide email on September 19, 2014, which caused several female
coworkers to “express[ ] fear for their personal saf ety around [him]” and they
were sent home ; and (4) on September 23, 2014, Federal Protective Service (FPS)
searched his possessions while he was at work and found a “folding razor
blade/box cutter” in his backpack , an item that wa s prohibited in the Federa l
facility where he work ed. Id. at 147-48.
¶6 In the initial decision, the administrative judge considered the evidence of
record , made demeanor -based credibility determinations from the hearing
testimony , and concluded that the agency proved by preponderant evidence each
allegation of misconduct raised in the narrative and the overall charge . ID
at 8-25. The appellant’s conduct discussed in the narrative was clearly improper
and caused a disruption in the workplace. The administrative judge’s findings
and analysis on this charge was detailed, precise, and corroborated throughout the
record. Id. The Board must give deference to an administrative judge’s
credibility determinations when they are based, exp licitly or implicitly, on the
observation of the demeanor of witnesses testifying at a hearing; the Board may
overturn such determinations only when it has “sufficiently sound” reasons for
doing so. Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002).
The appellant has not presented such sufficiently sound reasons . PFR File,
Tabs 3, 8. Therefore, w e affirm the administrative judge ’s conclusion sustaining
this charge. ID at 8-25; see Clay v. Department of the Army , 123 M.S.P.R. 245,
¶ 6 (2016) (finding no reason to d isturb the administrative judge’ s findings where
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).
6
¶7 We find unpersuasive t he appellant’s assertion on review that the agency
did not identify any “misconduct or disruption” through its description of this
charge in the proposal . PFR File, Tab 3 at 7. Inde ed, the narrative portion of this
charge within the proposal describes in detail the appellant’s statement s that he
felt like he was “gonna fucking kill someone ” and that he w ould “take . . . out”
his first - and second -level supervisors, his agency -wide email (which alarmed
several female coworkers ), and the discovery of a prohibited box cutter in his
backpack in the workplace. IAF, Tab 5 at 146-48. The proposa l, which
contained dates and accompanying circumstances, adequately put the appellant on
notice of the specific allegations of misconduct and disruption . Id.; see Otero v.
U.S. Postal Service , 73 M.S.P.R. 198, 202 -03 (1997) (holding that the agency’s
two-page narrative description of the appellant’s misconduct , which contained
dates, times, names of participants, and exact quotes of offense language used,
met the requirements of notice and fairness). Unquestionably, the appellant’s
conduct , as set forth in the proposal and proven by the agency , taken individually
or together , is improper . See Wiley v. U.S. Postal Service , 102 M.S.P.R. 535,
¶¶ 2, 12 (2006) (upholding , inter alia, a charge of improper conduct because the
agency proved that the appellant said that he was going to “get [ ] [his] gun and
shoot [ ] up the place ,” among other things, which violated agency policy ), aff’d ,
218 F. App’x 1001 (Fed. Cir . 2007) ( per curiam ).
¶8 The appellant also asserts on review that the administrative judge erred by
finding that he violated the Items Prohibited From Federal Facilities list by
bringing a box cutter or knife to work.5 PFR File, Tab 3 at 17-19. The appellant
focuses on 18 U.S.C. § 930(d)(3) , which outlines exceptions when an individual
may be permitted to carry a firearm or danger ous weapon in a Federal facility ,
and it includes the “lawful carrying of firearms or other dangerous weapons in a
5 Although the appellant framed this argument as a claim of a due process violation, it
appea rs that he is challenging the administrative judge’s factual findings and
conclusions concerning this portion of the charge. PFR File, Tab 3 at 17-19.
7
Federal facility incident to hunting or other lawful purposes .” Id. However, this
cited exception does not apply in the appellant’s situation . As the administrative
judge found, when looking to the applicable policy in place at the Federal
building where the appellant worked on the day in question , “[r]azor -type blades
such as box cutters” and “utility knives” we re on the list of prohibited items
unless they met the exempt ion described in 18 U.S.C. § 930(d)(3) . IAF, Tab 7
at 17; ID at 24-25. The evidence demonstrates that the item found in the
appellant’s backpack while at work on September 23, 2014 , as outlined i n this
charge in the proposal , was a prohibited box cutter or utility knife . I-2 AF,
Tab 41 at 5 (picture of the prohibited box cutter) .6 Therefore, the administrative
judge correctly found in the initial decision that the agency proved this portion of
the improper conduct charge. ID at 24-25.
The misuse of the agency’s e mail system charge is sustained.
¶9 In this charge and single specification, the agency alleged that the appellant
used his agency email address and sent an email to the entire agency on
September 19, 2014 , without obtaining supervisory approval , which disrupted the
workplace . IAF, Tab 5 at 148. The appellant, who began working for the agency
in December 2010, claims that at the time he sent this agency -wide email, he
was not aware of any policy requiring permission before sending . HT 2 at 116
(testimony of the appellant); ID at 26. Yet, t he agency -wide policy, dated July 5,
2011, which was distributed to all agency employees, stated , in relevant part, that
“[a]ny e -mail message which is to be sent to all [agency] employees . . . must be
approved by the sender’s Office Director before it can be distributed.”7 IAF,
6 We are not persuaded by the appellant’s assertion that the item satisfied one of the
exemptions in 18 U.S.C. § 930(d)(3) or otherwise constituted a pocket knife. PFR File,
Tab 3 at 18-19.
7 The appellant’s claim on review that the a pplicable policy in place when he sent his
September 19, 2014 email contains no requirement for supervisory approval befo re
sending an agency -wide email, PFR File, Tab 8 at 9, is contradicted by the evidence of
record, IAF, Tab 7 at 26.
8
Tab 7 at 26. The administrative judge found that the agency proved by
preponderant evidence that the policy in place at t he time that the appellant sent
the September 19, 2014 email required managerial approval before sending
agency -wide , he did not obtain such approval before sending , and doing so
constituted a misuse o f the agency’s email system and caused a workplace
disruption. ID at 26-28. In reaching this finding , the administrative judge relied
on the evidentiary record, to include credibility determinations based on the
hearing testimony of several agency witnesses . Id.; Haebe , 288 F.3d at 1301 .
Upon our review, w e find that the administrative judge appropriately found that
the agency proved this charge by preponderant evidence . These findings are
substantiated, reasoned, and appropriate. ID at 26-28; Clay, 123 M.S.P.R. 245,
¶ 6; Broughton , 33 M.S.P.R. at 359. Thus, we affirm this conclusion from the
initial decision.
¶10 To the extent that the appellant ass erts on review that the agency issued an
email policy after he sent the September 19, 2014 email, and it held him to that
subsequent standard in the removal proceedings, we are not persuaded by such an
assertion. PFR File, Tab 3 at 12-14. The decision letter noted that the agency
issued a revised policy regarding use of the agency’s email system on
December 19, 2014. IAF, Tab 5 at 48. However, the deciding official noted
therein that the appellant was only being held to the standard indicated in the
policy that was in effect at the t ime he sent the September 19, 2014 email. Id.
Similarly , the proposal letter cited the policy in effect at the time the appellant
engaged in the alleged misconduct and not the subsequent policy. Id. at 148.
Furthermore, the appellant ’s contention that he tried to meet with his Office
Director prior to sending the email, PFR File, Tab 3 at 13, tends to show that he
was aware of the requirement for supervisor y approval in place at the time . In
any event, the agency’s evidence proved that the appellant ne ver had the proper
permission to send the September 19, 2014 email.
9
¶11 The appellant also asserts that the agency should have merged the portion of
the improper conduct charge pertaining to the September 19, 2014 agency -wide
email that he sent , which caused a disruption in the workplace, and the misuse of
the agency’s email system charge , which the agency asserts also caused a
disruption in the workplace . PFR File, Tab 3 at 12-13, 13 n.3. The merger of
charges is appropriate when they are based on the same misconduct and proof of
one charge automatically constitutes proof of the other charge. Shiflett v.
Department of Justice , 98 M.S.P.R. 289, ¶ 5 (2005) . The appellant’s assertion in
this regard is unpersuasive. The fact that the agency proved the improper conduct
charge did not mean that it automatically proved the misuse of agency email
system charge. The crux of the relevant portion of the improper conduct charge
involved the disruption to the workplace that the content of the appellant’ s email
(and other statements) caused and did not address the supervisory approval
requirement . IAF, Tab 5 at 146-48. The root of the misuse of agency email
system charge center ed on the appellant not having the proper approval from
management to send an agency -wide email . Id. at 148. Because the allegations
are distinct, the administrative judge was correct to assess these
charges separately.
We modify the initial decision to find that the agenc y failed to prove
specification 2 of the misuse of Government resources charge , but we conclude
that the agency proved this char ge based on our de cision to sustain
specification 1.
¶12 This charge contained th e following two specifications: (1) the appellant’s
misuse of his Accuri nt,8 Lexis, and Westlaw accounts ; and (2) the appellant ’s
violat ion of the agency’s Network/Desktop Rule s of B ehavior. IAF, Tab 5
8 According to the testimony of the deciding official, Accurint is a “service t hat the
[agency] uses to find witnesses and to obtain corporate and other entity information
about respondents in charges of discrimination.” HT 1 at 41 (testimony of the deciding
official). He further described Accurint as “a personal identifiable infor mation tool.”
Id. at 42 (testimony of the deciding official).
10
at 148-50. In the first specification, the agency alleged that the appellant u sed
these electronic resources , paid for by the agency, to further his personal pursuits,
to include searches related to individuals and corpor ations not relevant to his
work , and such use was prohibited. Id. Through the second specification, the
agency alleged that the appellant violated its Network/Desktop Rules of Behavior
because he kep t a personal “journal” on the agency shared drive, accessible by
other employees, that contained material involving violence, bizarre and
disturbing material, including rape, “light bulb sodomy,” violence towards
women and children, and contained derogatory terms like “ faggot ,” among other
things . Id. at 150. This specification separately charged that, despite being
counseled otherwise, the appellant “ continued to behave inappropriately
toward[s] female legal interns.” Id. The specification stated that the agency
found “what appears to be a multi -page letter or e -mail from [the appellant] to
another female legal intern” who had written to him about the upcoming bar
examination, and he responded by telling her, among other things, “that she
should not worry about the bar exam and that if she went to [his] Facebook p age
she could see a picture of [him] wearing nothing but sour cream and a Band -aid.”
Id.; IAF, Tab 7 at 126.
¶13 The applicable Network/Desktop Rules of Behavior allow ed “limited use of
[G]overnment office equipment for personal, noncommercial needs . . . during the
employee’s no n-work time” and specifically prohibited “discriminatory
remarks[ ] or other text or communication that degrades individuals or groups.”
IAF, Tab 7 at 9-10. Upon review, we affirm the administrative judge’s decision
to sustain the first specification of this charge. Such decision by the
administrative judge is reasoned and supported by the evidentiary record, to
include his credibility findings from the hearing . ID at 28-34; Haebe , 288 F.3d
at 1301 ; Clay , 123 M.S.P.R. 245, ¶ 6; Broughton , 33 M.S.P.R. at 359.
¶14 The appellant contends that the agency erred when it determined in his
removal decision letter that he changed his email address on his Westlaw account
11
with the “intent to circumvent” the agency’s ability to con trol his Westlaw use.
PFR File, Tab 3 at 15-17; IAF, Tab 5 at 50. This contention is irrelevant. The
root of th is specif ication concerned the appellant ’s personal use of these systems,
which for the reasons thoroughly outlined in the initial decision, the agency met
its burden of proving. IAF, Tab 5 at 48-50, 148-50; ID at 28-34. Specifically,
the appellant admitted that he used these services in furtherance o f his personal
lawsuit against a non -Government entity . See, e.g. , HT 2 at 173-75 (admitting
that he used Accurint and Lexis for a private lawsuit against Citibank) (testimon y
of the appellant). Whether the appellant intended to circumvent the agency when
he changed his Westlaw email address is an incidental detail that has no bearing
on our decision to affirm the administrative j udge’s decision to sustain
this specification.
¶15 Although a close call, we do, however, reverse the administrative judge’s
decision to sustain specification 2 of this charge. ID at 34-38. In this
specification, the agency alleged that the appellant placed his journal containing
inappropriate content on the agency’s network “share [d] drive .” IAF, Tab 5
at 150. The agency’s network shared drive allowed coworkers to share
documents with other employees in that office. Id. The agency alleged that,
because of its location on the shared drive, the document was available t o all
employees in his office. Id.
¶16 We disagree with the administrative judge’s assessment of this part of
specification 2. We find instead that the agency failed to prove by preponderant
evidence that the appellant’s journal was ever maintained on the shared dri ve.
Indeed , the record reflects , and the appellant admitted, that he kept his journal on
his work computer. HT 2 at 184 (testimony of the appellant). While the
placement of these materials on his work computer could be a misuse of
Government resources, the agency did not specifically charge the appellant with
such misconduct in the proposal. IAF, Tab 5 at 150; see Minor v. U.S. Postal
Service , 115 M.S.P.R. 307, ¶ 10 (2010) (stating that the Board is required to
12
review the agency’s decision on an adverse action solely on the g rounds invoked
by the agency; the Board is not to substitute what it considers to be a more proper
basis) . We recognize that the appellant’s work computer could be remotely
accessed by other employees with administrative rights, as it was connected to the
agency’s network. ID at 34 (citing the appellant’s testimony). However, contrary
to the agency’s assertion, a file on his work computer —and not on the shared
drive —was not available to all employees in the office. Because we disagree
with the administr ative judge’s analysis of this portion of specification 2, we
revers e his analysis herein .9 The administrative judge did not make specific
findings in the initial decision regarding the other portion of specification 2,
involving the appellant’s alleged c orrespondence with a former female intern. ID
at 37-38. We need not resolve this portion of specification 2 because, for the
above reasons, we find that the agency did not prove the other portion of the
specification 2 involving the journal .
¶17 Even thoug h the agency only proved one of the two specifications, we still
find it appropriate to affirm the administrative judge’s conclusion that the agency
proved the overall misuse of Government resources charge. See Burroughs v.
Department of the Army , 918 F.2d 170 , 172 (Fed. Cir. 1990) (holding that where
more than one event or factual specification support a single charge, proof of one
or more, but not all, of the supporting specificatio ns is sufficient to sustain
the charge).
We are not persuaded that the agency committed any due process violations.
¶18 Nearly all of the appellant’s arguments on review are styled as due process
violations , PFR F ile, Tab 3 at 5-26, Tab 8 at 4-16, but we have largely addressed
them in this Final Order as challenges to the administrative judge’s analysis of
9 Because we are not sustaining specification 2 of this charge, we need not address the
appellant’s contention on review that the agency failed to provide him with a copy of
the applicable Ne twork/Desktop Rules of Behavior prior to his replies to the proposal.
PFR File, Tab 3 at 10-11.
13
the specific charges of misconduct. However, the appellant raised four specific
due process violation claims below that the administrative judge addressed .
I-2 AF, Tab 39 at 5. For example, he asserted that (1) the agency’s general
charge construction was impermissibly vague, (2) the agency specified the
appellant’s misconduct throughout the proposal by using conclusory assertions
without setting forth supporting facts, (3) the deciding official concluded that the
appellant engaged in conduct that was not set forth in the proposal notice and
then relied upon that determination in rendering his decision, and (4) the deciding
official relied upon information in rendering his removal decision that was not
provided to the appellant before any of his replies. Id. In the initial decision, t he
administrative judge determined that the appellant failed to prove each of these
claims. ID at 38-40, 66-68.
¶19 A public employee has a property interest in his continued employment,
meaning the Federal Government, as an employer, cannot deprive an employee of
such interest without due process. Wilson v. Department of Homeland Security ,
120 M.S.P.R. 686, ¶ 7 (2014) (citing Cleveland Board of Education v.
Loudermill , 470 U.S. 532 , 538 (1985)) , aff’d , 595 F. App’x 995 (Fed. Cir. 2015) .
As outlined by the Supreme Court, the essentials of due process in this context
are notice of the reasons for discip line and an opportunity to respond.
Loudermill , 470 U.S. at 546.
¶20 Additionally, p rocedural due process guarantees are not met if the employee
has notice of only certain charges or portions of the evidence and the deciding
official considers new and mater ial information; therefore, it is constitutionally
impermissible to allow a deciding official to receive additional material
information that may undermine the objectivity required to protect the fairness of
the process. Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368 ,
1376 (Fed. Cir. 1999). Not every ex parte communication is a procedural defect
so substantial and so likely to cau se prejudice that it undermines the due process
guarantee and entitles the claimant to an entirely new administrative proceeding;
14
rather, only ex parte communications that introduce new and material information
to the deciding official will violate the due process guarantee of notice. Id.
at 1376 -77. The Board will consider the following factors, among others, to
determine whether an ex parte contact is constitutionally impermissible:
(1) whether the ex parte communication merely introduces “cumulative”
information or new information; (2) whether the employee knew of the error and
had a chance to respond to it; and (3) whether the ex parte communications were
of the type likely to resul t in undue pressure upon the deciding official to rule in a
particular manner. Id. at 1377. When a procedural due process violation has
occurred because of ex parte communications, such a violation is not subject to
the harmless error test, and the appel lant is entitled to a new constitutionally
correct administrative proce eding . Id.
¶21 We agree with the administrative judge’s conclusions outlined in the initial
decision finding that the appellant failed to meet his burden of proving a due
process violati on. ID at 38-40, 66-68. While the agency could have been more
precise in the way that it labeled and described the charges of misconduct in the
proposal notice , the appellant still knew of the allegations of misconduct against
him prior to delivering his replies. IAF, Tab 5 at 57-63, 91 -129, 146-53.
¶22 On review , the appellant asserts that the deciding official considered a new
and unnoticed “threats” charge and improperly considered the appellant’s
threatening conduct as an aggravating factor in his penalty determination. PFR
File, Tab 3 at 20-23. The mere fact that the appellant’s statements that he felt
like he was “gonna fucking kill someone” and that he would “take . . . out” his
first- and second -level superviso rs were described as “threatening” does not mean
that the agency charged him with making threats or improperly described his
behavior as threatening . IAF, Tab 5 at 46-47, 53; see Pinegar v. Federal Election
Commission , 105 M.S.P.R. 677, ¶ 28 (2007) (noting that the agency charged the
appellant with inappropriate remarks, not with making a threat, and therefore, it
was not required to prove whether the conduct constituted a threat) . The agency
15
charged the appellant with improper conduct, and within the proposal, included a
description of the appellant’s behavior that constituted the misconduct. IAF,
Tab 5 at 146-48. Indisputably, the appellant had notice of these allegations of
misc onduct prior to his replies . As a result, we find no due process violation.
¶23 The appellant further claim s on review that the agency violated his due
process rights as it relates t o the improper conduct charge because the deciding
official referenced in the decision letter the September 12 and September 16,
2014 emails that the appellant sent to his coworker s. Id. at 46; PFR File, Tab 3
at 6-10. The appellant cl aims that he never received these emails prior to
submitting his replies to the proposal nor did he have notice that the deciding
official was considering them. PFR File, Tab 3 at 7-10. It is true that the emails
are mentioned in the decision letter but not in the proposal notice, IAF, Tab 5
at 46, 146-53, but the administrative judge found that these emails were
“cumulative and/or known to the appellant ,”10 ID at 68. The evidence of record
supports the administrative judge’s finding in this regard. The deciding official
testified that he knew of these emails only because they were mentioned in
statement s prov ided by agency employee s and a deposition provided by the
appellant . IAF, Tab 6 at 52, 65 ; HT 1 at 88-89 (testimony of the deciding
official) . The appellant does not claim that he never received a copy of these
statement s prior to his submitting his replies to the proposal . The deciding
official further testified that he never saw the September 12 and September 16
emails, HT 1 at 88 (testimony of the deciding official ), meaning there is no way
that he could have relied upon the substance of these emails when making his
decision. See Villareal v. Bureau of Prisons , 901 F.3d 1361 , 1365 -66 (Fed. Cir.
2018) (finding no due process violation, in part, because the deciding official
10 The agency asserts in its response to the petition for review that the appellant
provided this documentation to the deciding official. PFR File, Tab 7 at 13, 17-19.
However, t he statements of a party’s representative in a pleading do not constitute
evidence, Hendricks v. Department of the Navy , 69 M.S.P.R. 163 , 168 (1995) , and we
cannot independently corroborate the agency’s assertion in this regard .
16
did not rely on the ex parte inf ormation when making his decision on the
removal). Moreover, it appears that the deciding official cited these emails only
to give context for understanding why the appellant’s coworker “became
increasingly concerned about [the appellant’s] erratic behavi or” and informed the
supervisor that the appellant “reached [his] breaking point.” IAF, Tab 5 at 46.
Additionally, there is no indication that these emails themselves disrupted the
workplace. A s a result, t here is nothing to suggest that the appellant’s due
process rights were violated when the deciding official mentioned these email s.
¶24 Similarly, t he appellant argues on review that the agency never provided
him with a copy of the 2011 email policy relevant to the misuse of the agency’s
email system charge. PFR File, Tab 3 at 13-14. However, the record shows that
the agency provided the appellant with the name of the policy , and then properly
cited the relevant portion of the policy in the proposal notice , meaning the
appellant had knowledge of what the deciding official was relying on before he
submitted his replies to the proposal . IAF, Tab 5 at 148, Tab 7 at 26; see, e.g.,
Gill v. Department of the Navy , 34 M.S.P.R. 308, 311 (1987) (outlining that a
proposal notice that sets forth the charges in great factual detail, in conjunction
with other evidence, may be considered as part of the agency’s valid proof of the
charge) . Therefore, we find no due process violation.
We modify the initial decision to find that the appellant’s September 19, 2014
email contained a whistleblowing disclosure that was a contributing factor in the
agency’s decision to remove him , but the agency proved by clear and convincing
evidence that it would have taken the sa me action in the absence of
the disclosure.
¶25 The appellant alleged in this appeal that the agency’s decision to remove
him was in reprisal for a whistleblowing disclosure that he made. I-2 AF, Tab 39
at 9-12. Specifically, the appellant described his whistleblowing disclosure as his
September 19, 2014 email, which stated, among other things, that someone
“doctored” his Official Personnel File (OPF) “to make [his] 7 -month enforcement
stint [ ] look like a 90 -day detail. ” Id. at 9.
17
¶26 An adverse action appealable to the Board, such as a removal, may not be
sustained if it is shown “that the decision was based on any prohibited personnel
practice described in [5 U.S.C. §] 2302(b).” 5 U.S.C. § 7701 (c)(2)(B). In order
to prevail on the merits of this claim, an appellant must prove by preponderant
evidence that he made a whistleblowing disclosure as described under 5 U.S.C.
§ 2302 (b)(8) or engaged in protected activity as 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 outlined in 5 U.S.C. § 2302 (a)(2)(A) .11 5 U.S.C. § 1221 (e); Ayers v.
Department of the Army , 123 M.S.P.R. 11, ¶ 12 (2015 ). If an app ellant meets his
burden, then the Board shall order corrective action unless the agency shows by
clear and convincing evidence that it would have taken the same personnel action
in the absence of the whistleblowing disclosure and/or protected activity.
5 U.S.C § 1221 (e)(2); see Ayers , 123 M.S.P.R. 11, ¶¶ 12, 27.
¶27 The administrative judge concluded in the initial decision that the appellant
failed to establish that he made a whistleblowing disclosure.12 ID at 49-61.
Significantly, the administrative judge relied on a July 29, 2013 performance plan
certification, in which the appellant acknowledged that his detail to the
Enforcement Unit began in July 2013, to find that the appellant did not have a
reasonable belief that his detail lasted 7 months. ID at 58. The administrative
judge noted that the agency had a prac tice of exercising its discretion to have
employees perform tasks in other office sections without a formal detail. Id. The
administrative judge discussed the appellant’s contention that the agency issued
two Standard Form (SF) 50s within 2 days which ev idenced wrongdoing, but he
found that the agency was correcting an earlier mistake. ID at 58-59. The
11 The appellant’s removal, which the agency took under chapter 75, is a personnel
action under 5 U.S.C. § 2302 (a)(2)(A)(iii).
12 The appellant did not claim that he engaged in activity protected under 5 U.S.C.
§ 2302 (b)(9)(A)(i), (B), (C), or (D).
18
administrative judge stated alternatively that, even if the appellant satisfied his
burden to prove that he made a whistleblowing disclosure in the email that was a
contributing factor in the agency’s decision to remove him, he found that the
agency proved by clear and convincing evidence that it would have removed him
absent such disclosure. ID at 61-63.
¶28 In his petition for review, t he appellant argues that his September 19, 2014
email constitute d a whistleblowing disclosure. PFR File, Tab 3 at 14. We agree.
Protec ted whistleblowing takes place when an appellant makes a disclosure that
he reasonably believes evidences a ny violation of any law, rule, or regulation ,
gross mismanagement , a gross waste of funds, an abuse of authority , or a
substantial and specific danger to public health or safety. 5 U.S.C.
§ 2302 (b)(8)(A); DeLeonardo v. Equal Employment Opportunity Commission ,
103 M.S.P.R. 301, ¶ 6 (2006). An appellant need not show that the matter
disclosed actually established a violation or other situation as described in
5 U.S.C. § 2302 (b)(8)(A). DeLeonardo , 103 M.S.P.R. 301, ¶ 6. Instead, an
appellant must prove that the matter disclosed was one which a reasonable person
in his position would believe evidenced any of the situations set forth in 5 U.S.C.
§ 2302 (b)(8). Id. The proper test for determining whether an appellant had a
reasonable belief that his disclosures revealed one of the categories of misconduct
described in the whistleblower protection statutes is whether a disinterested
observer, with knowledge of the essential facts known to and readily
ascertainable by an appellant, could reasonably conclude that the disclosure
evidence s one of the categories of wrongdoing listed in 5 U.S.C. § 2302 (b)(8) .
Id. (citing Lachance v. White , 174 F.3d 1378 , 1381 (Fed. Cir. 1999)).13
13 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
Whistleblower Protection Enhancement Act of 2012 , Pub. L. No. 112-199, 126 Stat.
1465 , extended for 3 years in the All Circuit Review Extension Act, Pub. L.
No. 113-170, 128 Stat. 1894 , and eventually made permanent in the All Cir cuit Review
Act, Pub. L. No. 115-195, 132 Stat. 1510 , appellants may file petitions for judicial
19
¶29 We find that t here is sufficient evidence from which to conclude that the
appellant’s detail lasted longer than the July 28 to November 15, 2013 time frame
identified in his SF -50s created by the agency . IAF, Tab 6 at 94, 101, 103 .
Contrary to the administrative judge’s finding that the appellant knew that the
detail began in July 2013, both the appellant and the Enforcement Unit supervisor
stated in their respective narrative portions of the performance appraisal record
that the appellant’s detail to the Enforcem ent Unit began in or around June 2013.
I-2 AF, Tab 40 at 30, 38 ; ID at 58. Thus, we find that a disinterested person with
knowledge of the essential facts would construe from these admissions that the
appellant began performing work in the Enforcement Un it in or around
June 2013.14 Similarly, a disinterested person with knowledge of the essential
facts would conclude that the appellant continued to perform work as part of his
detail in the Enforcement Unit until around December 4, 2013.15 I-2 AF, Tab 40
at 39 (the appellant’s performance appraisal record for the period immediately
following his detail was dated from December 4, 2013 , to September 30, 2014 ).
This nearl y 6-month time frame, from June to December 2013, far exceeds the
July 28 to November 15, 2013 time frame memori alized in the appellant’s OPF.
Under these circumstances, we find that a disinterested observer with knowledge
of the essential facts known to and readily ascertainable by the appellant c ould
reasonably conclude that his OPF did not correctly identify the start and end dates
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).
14 Even if we assumed for the purposes of our analysis that the July 14, 2013 start date
of the appraisal period coincided with the start date of his detail, I -2 AF, Tab 40
at 27-34, a different outcome is not warranted because a July 14, 2013 start date is
2 weeks earlier than the start of the detail as reflected in the appellant’s OPF, IAF,
Tab 6 at 101.
15 The agency’s decision to issue multiple SF -50s in mid -December 2013 to correct its
own mistake in originally extending the appellant’s detail does not warrant a different
outcome because the record reflects that he continued to work in the Enforcement Unit
for almost 3 weeks after the November 15, 2013 end date of the detail identified in his
OPF. IAF, Tab 6 at 103; I -2 AF, Tab 40 at 39.
20
of his detail to the Enforcement Unit and the agency’s apparent manipulation of
his SF -50s evidenced some kind of wrongdoing.16 See, e.g., Stiles v. Department
of Homeland Security , 116 M.S.P.R. 263, ¶ 17 (2011) (finding that an employee
need not prove an actual violation to establish that he had a reasonable belief that
his disclosure met the statutory criteria). For these reasons, we find that the
appellant’s September 19, 2014 email constituted a whistleblowing disclosure,
and we modi fy the initial decision in this regard.
¶30 We further find that the appellant’s whistleblowing disclosure was a
contributing factor in the agency’s decision to remove him on October 16, 2015.
To prove that a disclosure was a contributing factor in a personnel action, the
appellant need only demonstrate that the fact of, or the content of, the disclosure
was one of the factors that tended to affect the personnel action in any way.
Carey v. Department of Veterans Affairs , 93 M.S.P.R. 676, ¶ 10 (2003). The
knowledge/timing test allows an appellant to demonstrate that the disclosure was
a contributing factor in a personnel action through circumstantial evidence, such
as ev idence that the official taking the personnel action knew of the disclosure
and that the personnel action occurred within a period of time such that a
reasonable person could conclude that the disclosure was a contributing factor in
the personnel action. Id., ¶ 11; see 5 U.S.C. § 1221 (e)(1).
¶31 The knowledge element is satisfied because the appellant sent the
September 19, 2014 emai l to the entire agency, thus imputing knowledge to the
agency offici als involved in his removal . IAF, Tab 5 at 47-48, 148. The timing
element is satisfied because the agen cy removed him approximately 13 months
after he sent the email. Id. at 44; see Gonzalez v. Department of Transportation ,
16 On review, the appellant cites 18 U.S.C. § 1001 and 5 C.F.R. § 293.103 (b) to support
his contention that he disclosed an agency violation of a law or regulation. PFR File,
Tab 3 at 14. We find that the appellant’s allegations that the agency doctored his OPF
so obviously implicate a violation of a law, rule, or regulation that it was unnecessary
for him to identify any specific law or regulation that he believed was violated.
DiGiorgio v. Department of the Navy , 84 M.S.P.R. 6 , ¶ 14 (1999).
21
109 M.S.P.R. 250, ¶ 20 (2008) (finding that the appellant’s disclosures were a
contributing factor in his rem oval when they were mad e over 1 -year before the
removal); Redschlag v. Department of the Army , 89 M.S.P.R. 589, ¶ 87 (2001)
(finding that the appellant’ s disclosures were a contributing factor in her removal
when they were made approximately 21 months and then slightly over a year
before the agency removed her). Accordingly, we conclude that the appellant has
shown that his September 19, 2014 email was a contributing factor in the
agency’s decision to remove him in October 2015 .
¶32 Because the appellant met his burden of proving that he made a
whistleblowing disclosure that w as a contributing factor in the agency’s decision
to remove him, the analysis shifts to whether the agency proved by clear and
convincing evidence that it would have taken the removal action despite the
whistleblowing disclosure. Ayers , 123 M.S.P.R. 11, ¶ 12. In determining
whether an agency meets its burden, the Board considers the following (“ Carr
factors”) : (1) the strength of the agency’ s evidenc e in support of its action,
(2) the existence and strength of any motive to retaliate on the part of agency
officials in volved in the decision, and (3) any evidence that the agency takes
similar actions against employees who are not whistl eblowers but who are
otherwise similarly situated. Soto v. Department of Veterans Affairs , 2022 MSPB
6, ¶ 11; see also Carr v. Social Security Administration , 185 F.3d 1318 , 1323
(Fed. Cir. 1999) . The Board does not view the Carr factors as discrete elements;
rather, they are weighed together to determine if the evidence is clear and
convincing as a whole. Elder v. Department of the Air Force , 124 M.S.P.R. 12,
¶ 42 (2016). The Carr factors are nonexclusive, meaning the Board also
considers other relevant facts. See Miller v. Department of Justice , 842 F.3d
1252 , 1257 (Fed. Cir. 2016).
¶33 The agency’s evidence to remove the appellant on three charges of
misconduct is strong , notwithstanding the fact that we do not sustain
specification 2 of the misuse of Government resources charge . As described
22
herein, the appellant engaged in a pattern of misconduct that is not acceptable in
the workplace, including saying that he felt like he was going to kill someone and
that he would take out his supervisors, FPS discovering a prohibited box cutter in
his backpack while at work , and misusing the agency’s email system and certain
Government resources . IAF, Tab 5 at 45-54, 146 -153. The second Carr factor ,
describing the e xistence and strength of the agency’s motive to retaliate , favors
the appellant because the September 19, 2014 email identified by name the
agency official who proposed his removal, and he made several disparaging
comments about other senior agency officia ls and the agency’s handling of his
EEO matter. IAF, Tab 5 at 146, Tab 6 at 94-98; 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 disclosures reflected
poorly on the agency and its officials ). Neither party has identified on review,
nor are we aware of, any evidence regarding the third Carr factor.17 When the
agency fails to introduce relevant comparator evidence, the third Carr factor
cannot weigh in favor of the agency. Soto , 2022 MSPB 6 , ¶ 18.
¶34 Under the circumstances of this case, we conclude that the strength of the
agency’s evidence outweighs the other two Carr factors. Indeed, the agency’s
decision to remove the appellant was based on his disruptive behavior, including
stating that he was going to kill someone , carrying a prohibited box cutter, and
misusing Government resources . The serious nature of the subst antiated
misconduct justifies the agency’s concern about the appellant’s continued
presence in the workplace . HT 1 at 69-77 (testimony of the deciding official).
17 The deciding official stated in the decision letter that he had “never been confronted
with this level and type of misconduct” and was “unaware of any similar situations to
which [the appe llant’s] misconduct could be compared.” IAF, Tab 5 at 54.
23
We are left with a firm belief that the agency would have removed the appellant
absent his September 19, 2014 email.18
We modify the initial decision to supplement the administrative judge’s analysis
of the appellant’s affirmative defense of retaliation for pro tected EEO activity.
¶35 The appellant’s prior EEO complaints involved allegations of
discrimination based on race, sex, color, disability, and reprisal for prior EEO
activity. I-2 AF, Tab 40 at 50-53. Our analysis of his reprisal claims depends, in
part, on the nature of these underlying allegations. Therefore, we will discuss the
legal standards first then proceed to an examination of his claims.
Legal standard for evaluat ion a claim of reprisal for EEO activity
¶36 Title VII of the Civil Rights Act of 1964, as amended, requires that such
actions “shall be made free from any discrimination based on race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e -16(a). An appellant may prove an
affirmative defense under this subsection by showing that prohibited
discrimination or reprisal was a m otivating factor in the contested personnel
action, i.e. that discrimination or reprisal played “any part” in the agency’s action
or decision. Pridgen v. Office of Management & Budget , 2022 MSPB 31, ¶¶ 21,
30. Nevertheless, while an appellant who proves motivating factor and nothing
more may be e ntitled to injun ctive or other forward -looking relief, in order to
obtain the full measure of relief available under the statute, including status quo
ante relief, compensatory damages, or other forms of relief related to the end
result of an employment decision, he must show that discrimination or reprisal
was a but -for cause of the employment outcome. Id., ¶ 22.
¶37 By contrast, the appellant’s claim of reprisal for EEO activity based on his
complaint of disabili ty discrimination is protecte d by the Americans with
Disabilities Act (ADA) , as amended by the Americans with Disabilities Act
18 We have reviewed the relevant legislation enacted since the filing of this appeal and
find that it does not impact the outcome.
24
Amendments Act, the standards of which have been incorporated by reference
into the Rehabilitation Act. 29 U.S.C. § 791(f); 42 U.S.C. § 12203 (a); Pridgen ,
2022 MSPB 31, ¶¶ 35, 44 . To prove a claim of retaliation in violation of the
ADA, an appellant must prove “but-for” causation .19 Pridgen , 2022 MSPB 31,
¶¶ 45-48.
The appellant did not prove his EEO reprisal claims.
¶38 In the initial decision, the administrative judge concluded that the appellant
“offers little to support his assertion that his removal was mo tivated by unlawful
EEO retaliation ” other than the fact that he filed various EEO complaints. ID
at 42. The administrative judge thus found that the appellant failed to prove by
preponderant evidence that his EEO complaints served as a motivating factor in
the agency’s decision to remove him. ID at 42-43. We discern no error with the
administrative judge’s analysis regarding his claims invol ving race, sex, or color
discrimination . We have considered the appellant’s argument on review that the
animus of two agency officials toward him because of his EEO complaint s could
be imputed to the proposing or deciding officials through the cat’s paw t heory.
PFR File, Tab 3 at 25; see, e.g. , Staub v. Proctor Hospital , 562 U.S. 411 , 415 -16
(2011) (describing the term “cat’s paw” to describe a case in which a particular
management official, acting because of improper animus, influences an agency
official who is unaware of the improper animus when implementing a personnel
action). Even if we assumed for the purposes of our analysis that these agency
officials harbored some animus against him, the appellant offers no evidence that
these officials improperly influenced the proposing or deciding officials .
Accordingly, we are not persua ded that the appellant’s EEO complaints involving
19 The administrative judge and the parties did not have the benef it of our analysis in
Pridgen . However, we need not remand this claim because the record is fully
developed on this issue, and a different outcome is not warranted.
25
allegations of race, sex, or color discrimination were a motivating factor in the
agency’s decision to remove him.
¶39 Even if we evaluated the appellant’s claim of reprisal based on his prior
complaint of dis crimination (perceived disability), IAF, Tab 1 at 21-23, a
different outcome is not warranted. For the reasons described herein, the
appellant cannot meet his burden to prove “but -for” causation .
¶40 On review, the appellant contends that his September 19, 2 014 email also
constituted protected EEO activity and it served as a motivating factor in
agency’s decision to remove him. PFR File, Tab 3 at 23-26. The administrative
judge did not explicitly consider this email as protected EEO activity in the initial
decision, even though the appellant raised this ar gument before him. I -2 AF,
Tab 39 at 5-6; ID at 42-43. We modify the initial decision to consider whether
the appellant proved that the agency retaliated against him for his protected EEO
activity of send ing the September 19, 2014 email.
¶41 We find that t he email in question was clearly a motivating factor in the
appellant’ s removal; it formed part of the basis of charge 1 and the sole basis of
charge 2, both of which charges the deciding official sustained. IAF, Tab 5
at 46-48, 147 -48. We further find that the email was at least part ly directed
towards opposing discrimina tion in the workplace. I-2 AF, Tab 57 at 10-11.
However, in his decision letter, the deciding official acknowledged that the
appellant’s email concerned an opposition to discrimination, but he explained that
the appellant was being disciplined for the ma nner of the opposition rather than
for the opposition per se . IAF, Tab 5 at 48. We agree.
¶42 The Equal Employment Opportunity Commission and the Federal Courts
balance the right to oppose employment discrimination against the employer’ s
need to have a sta ble and productive work environment. For this reason, the
protection of the opposition clause of 42 U.S.C. § 2000e -3(a) only applies where
the manner of opposition is reasonable. Gerry W. v. Department of Defense ,
EEOC Appeal No. 0120171168 , 2018 WL 5386075 , at *12 (Oct. 11, 2018) ; EEOC
26
Enforcement Guidance on Retaliation and Related Issues, No. 915.004 § II.A.2.b
(Aug. 25, 2016) ; see Hochstadt v. Worcester Foundation for Experimental
Biology , 545 F.2d 222 , 231 -33 (1st Cir. 1976); Matima v. Celli , 228 F.3d 68 , 79
(2nd Cir. 2000) (explaining the broad consensus among the circuits that
“disruptive or unreasonable protests against discrimination are not protected
activity under Title VII and therefore cannot support a retaliation claim”). The
examination of whether an employee opposed discrimination in a reasonable
manner is a context - and fact -specific inquiry, in which the right to oppose
emplo yment discrimination against the employer ’s need to have a stable and
productive work environment must be balanced. Gerry W. , EEOC Appeal
No. 0120171168, 2018 WL 5386075, at *12. In this case, we find that, not only
did the appellant violate agency polic y by sending his email agency -wide to more
than 2,000 recipients , but that the content of the email was highly disrespectful ;
among other things, the appellant directly impugned his supervisor’s integrity,
accused her of exercising her authority in a frivo lous manner, and stated that she
was part of a “little girls’ club. ” IAF, Tab 5 at 147; I -2 AF, Tab 57 at 7. We
acknowledge that it may be appropriate to grant some leeway to an employee
whose passionate opposition to discrimination deviates somewhat from the
bounds of perfect propriety . However, in this case, we find that the disrespectful
language in the appellant’s September 19, 2014 email, coupled with its
dissemination throughout the en tire agency, was not a reasonable course of action
and that this activity therefore falls outside the protections of Title VII. See
Gerry W. , EEOC Appeal No. 0120171168, 2018 WL 5386075, at *12 (holding
that the appellant’s “inflammatory accusations” “t hat were needlessly copied to
several senior ma nagement officials or the media” in an effort to “intimidate,
taunt, and humiliate” their subjects was not activity protected under Title VII).
27
We modify the initial decision to clarify the proper standard for analyzing the
appellant’s disparate treatment disability discrimination claim, still find ing that
he did not prove this aff irmative defense.
¶43 In the initial decision, the administrative jud ge addressed the appellant’s
claim that the agency perceived him as disabled because an agency doctor
concluded that he posed a meaningful risk of workplace violence. ID at 43-49.
The administrative judge determined that there was little in the record to suggest
that he had a record of a disability that substantially limited one or more major
life activities or that the agency misclassified him as having an impairment that
substantially limited one or more major life activities, and the removal decision
was based on misconduct and not the agency’s percepti on that he had a disability.
ID at 48-49. Therefore, the administrative judge concluded that the appellant
failed to meet his burden to prov e disability discrimination. ID at 49.
¶44 The appellant does not challenge the administrative judge’s analysis of his
disability discrimination claim on review. PFR File, Tabs 3, 8. Notwithstanding ,
in Pridgen , 2022 MSPB 31, ¶¶ 40, 42 , the Board held that claims of disparate
treatment disability discrimination are subject to the motivatin g factor/“ but-for”
cause analytical framework discussed above. The parties and the administrative
judge did not have the benefit of the Board’s analysis in Pridgen when
adjudicating this appeal , but it is unnecessary to remand the appeal because the
record is fully developed on this matter . Even when applying the motivating
factor/“ but-for” cause framework to this claim, a different outcome is not
warranted because the appellant failed to prove that his perceived disability was a
motivating factor in the agency’s removal decision.
28
We affirm the removal penalty.20
¶45 When, as here, al l of the agency’s charges are sustained, but some of the
underlying specifications are not, the agency’s penalty is entitled to deference and
only should be reviewed to determine whether it is within the parameters of
reasonableness. Payne v. U.S. Postal Service , 72 M.S.P.R. 646, 650 (199 6).
This is because the agency has primary discretion in maintaining employee
discipline and effi ciency . Thomas v. U.S. Postal Service , 96 M.S.P.R. 179, ¶ 4
(2004) . The Board will not displace agency’s responsibility in this respect, but
will instead ensure that managerial judgment has been properly exercised. Id.
¶46 On review, the appellant includes his arguments regarding the removal
penalty within his due process violation claims , which we have addres sed above .
PFR File, Tab 3 at 20-23. Upon our review of the initial decision, we f ind that
the administrative judge correctly determined that the deciding official considered
the relevant factors under Douglas v. Veterans Administration , 5 M.S.P.R. 280,
306 (198 1), and that removal was a reasonable penalty in this instance . ID
at 64-68; IAF, Tab 5 at 52-54. Particularly, the nature and seriousness of the
appellant’s misconduct , coupled with his lack of rehabilitative potential and
remorse strongly outweigh the mitigating factors of his satisfactory work
performance and lack of a prior disciplinary history , warrant a severe penalty .
The penalty of removal is still reasonable in light of the fact that w e did not
sustain specification 2 of the misuse of Government resources charge. We affirm
the initial decision’s conclu sion pertaining to the penalty.
20 The appellant does not challenge the administrative judge’s finding in the initial
decision that the agency proved a nexus between the charges of misconduct and the
efficiency of the service. ID at 63-34; PFR File, Tabs 3, 8. Upon review, we find no
reason to disturb this finding and hereby affirm it.
29
NOTICE OF APPEAL RIGHTS21
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which t o file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriat e for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applica ble to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the 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).
21 Since the issuance of the initial decision in this matter, 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.
30
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
31
discrimination based on race, color, religion, sex, 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, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for re view to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
32
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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.22 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional inform ation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
22 The original statutory provision that pro vided for judicial review of certain
whistleblower claims by any court of 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 p etitions for judicial review of
MSPB decisions in 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 Nov ember 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
33
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information fo r the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MCCARDLE_TREVOR_SF_0752_16_0689_I_3_FINAL_ORDER_1984041.pdf | 2022-12-07 | null | SF-0752 | NP |
3,882 | https://www.mspb.gov/decisions/nonprecedential/REQUENA_ROMMIE_DA_1221_16_0488_W_3_REMAND_ORDER_1983506.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROMMIE REQUENA,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DA-1221 -16-0488 -W-3
DATE: December 6, 2022
THIS ORDER IS NONPRECEDENTIAL1
Benjamin E. Wick , Esquire and Holly V. Franson , Esquire, Denver,
Colorado, for the appellant.
Grant Gardner , Laredo, Texas, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavi tt, Member
REMAND 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 denied corrective action in this
individual right of action (IRA) appeal. For the reasons discussed below, we
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
GRANT the petition for review, DENY the cross petition for review, VACATE
the initial decision, and REMAND the case to the regional office for further
adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant is a former Chief C ustoms and Border Protection Officer with
the agency’s Customs and Border Protection at the Port of Laredo, Texas. She
filed this IRA appeal alleging that, in reprisal for her protected disclosure and
activity, the agency changed her job duties, created a hostile working
environment, proposed her removal, reduced her in rank to a Supervisory
Customs and Border Protection Officer, and suspended her for 30 days. Requena
v. Department of Homeland Security , MSPB Docket No. DA -1221 -16-0488 -W-1,
Initial Appeal File (IAF), Tab 1 at 6, 60 -61, Tab 5 at 4-16; Requena v.
Department of Homeland Security , MSPB Docket No. DA -1221 -16-0488 -W-3,
Appeal File (W -3 AF), Tab 11 at 9, Tab 46 at 20. The appellant identified her
protected disclosure as a May 8, 2012 email and meeting with her supervisors in
which she alleged that their proposed changes to asset seizure records constituted
falsification and could result in the loss of criminal prosecutions. IAF, Tab 5
at 6; W -3 AF, Tab 11 at 4 -5, Tab 46 at 20 n.22. She asserted that her protected
activity consisted of complaints she filed with the Office of Special Counsel
(OSC) in February 2014. IAF, Tab 5 at 6, 9; W -3 AF, Tab 11 at 7, Tab 46 at 20
n.22. The agency based th e reduction in rank and 30 -day suspension on charges
of Misuse of the Treasury Enforcement Communications System
(13 specifications) and Misuse of Position ( 1 specification). IAF, Tab 8 at 15 -24.
¶3 During the proceedings before the administrative judge the appellant filed
an October 10, 2016 motion to compel the discovery of evidence. IAF, Tab 17.
The motion set forth the “reasons” in support of each discovery request and
included a copy of a September 9, 2016 discovery request, as well as the agency’s
September 29, 2016 answer to that request and the appellant’s October 5, 2016
3
letter to the agency seeking to resolve the dispute. Id. at 8-73, 83 -93. The
administrative judge denied the motion to compel, finding it premature because
the parties were workin g cooperatively to reduce or eliminate discovery conflicts.
IAF, Tab 20 at 2. He indicated that he would “reopen a very brief window of
time to reassert [the] motions to compel, if necessary, when the appeals are
refiled.” Id. at 3. In a subsequently i ssued initial decision dismissing the appeal
without prejudice, the administrative judge noted that, “upon refiling, all
previously filed submissions will be made part of the refiled appeal,” and that
“[u]pon refiling, any document submitted in this appeal should not be
resubmitted.” IAF, Tab 22 at 3 & n.2.
¶4 On February 28, 2017, after the appeal had been dismissed without
prejudice and refiled, the appellant again filed a motion to compel seeking
complete responses to specific interrogatory numbers and d ocument request
numbers from the discovery request she had previously filed in the initial appeal.
Requena v. Department of Homeland Security , MSPB Docket No. DA -1221 -16-
0488 -W-2, Appeal File (W -2 AF), Tab 5 at 4 -5. The appellant asserted that the
agency still had not provided complete discovery responses despite agreeing to do
so, incorporated by reference the arguments she had raised in her October 10,
2016 motion to compel, and attached email and other correspondence with the
agency regarding discovery . Id. at 4, 5 n.4, 13 -31, 39 -60. The administrative
judge denied that motion to compel as not in compliance with 5 C.F.R. § 1201.73 ,
finding that “[b]ased on the record before me, I fin d the appellant failed to
include a copy of the original discovery request and also failed to provide a
statement showing that the information she seeks is discoverable.” W -2 AF,
Tab 12 at 2. The appellant filed a timely objection to the ruling. Id., Tab 13.
¶5 On September 25, 2017, however, the administrative judge granted the
appellant’s motion for sanctions against the agency because it had failed to
comply w ith a September 11, 2017 Board O rder to produce certain documents
that were not subject to a rec ognized privilege. W -3 AF, Tab 30 at 4. The
4
sanction limited the agency to presenting three witnesses at the hearing because
of its “repeated inability to comply with Board orders.” Id. In the
aforementioned September 11, 2017 Order , the administrative judge had noted
that, although he had afforded the agency an opportunity to establish that a
recognized privilege applied to each document at issue and to cure any incorrectly
asserted privilege, the agency had made only conclusory claims and thus failed to
meet its burden. W -3 AF, Tab 23 at 1 -2. He therefore ordered the agency to
provide all documents to the appellant by September 13, 2017. Id. at 2. The
agency responded to that order by requesting that the administrative judge certify
the issue for i nterlocutory appeal. W -3 AF, Tab 24 at 4 -8. The agency asserted
that it had produced privilege logs as required by the administrative judge, yet he
refused to conduct an in camera inspection of the records despite the agency’s
offer to do so. Id. at 6-7. The administrative judge denied the request to certify
an interlocutory appeal, finding that the privilege logs were poorly formatted,
disjointed, unusable, and failed to allege facts that could establish that a privilege
existed for any document. W -3 AF, Tab 42 at 1 -2. He therefore held that an in
camera inspection was unnecessary and ruled that there were no important
questions of law or policy requiring an interlocutory appeal such that an
immediate ruling would materially advance the completion of the proceeding or
avoid undue harm to a party or members of the public. Id. at 2-4.
¶6 The administrative judge found that the Board had jurisdiction over this
IRA appeal.2 W-2 AF, Tab 12 at 1 -2; W -3 AF, Tab 46, Initial Decision (ID) at 1,
20-21. After a h earing, however, he denied corrective action. ID at 2, 57. The
2 The administrative judge issued a separate initial decision dismissing for lack of
jurisdiction the appellant’s adverse action appeal challenging her suspension and
demotion, which had been joined w ith this appeal, upon finding that the appellant
elected to seek corrective action from OSC before filing the adverse action appeal with
the Board. W -3 AF, Tab 30 at 2 n.3; Requena v. Department of Homeland Security ,
DA-0752 -16-0012 -I-3, Initial Decision at 2, 7 -14 (Oct. 3, 2017). The appellant’s
petition for review of that initial decision has been separately addressed by the Board.
5
administrative judge found that the May 8, 2012 disclosure was not protected
because the appellant did not show that she reasonably believed that her
disclosure evidenced wrongdoing covered b y 5 U.S.C. § 2302 (b)(8). ID at 21 -24.
In this regard, the administrative judge found that a reasonable person would not
infer any illegal purpose or violation of agency policy based upon the agen cy’s
attempt to correct an improper accounting of seizure activity that occurred at the
Port of Laredo. ID at 24, 27 -29. He found that the agency did not attempt to
make the change in secret, as the appellant had alleged, the agency was engaging
in an in teractive process to fix a reporting problem, and the agency instructed the
appellant to add a management note to the changed seizure forms that explained
why the change was being made and included the original information on the
forms. ID at 24 -27. The administrative judge held that the disclosure did not
evidence an abuse of authority or gross mismanagement, and instead reflected a
policy disagreement on how to make changes to seizure records to properly
account for seizure totals at the Port of Laredo. ID at 29 -34.
¶7 The administrative judge further found that the appellant engaged in
protected activity by filing three OSC complaints that were a contributing factor
in the proposed removal, the reduction in rank, and the 30 -day suspension. ID
at 35-37. Nevertheless, he found that the agency proved by clear and convincing
evidence that it would have taken those actions in the absence of her protected
activity. ID at 37. The administrative judge held that there was strong evidence
to support the actions, there was weak evidence that the agency was motivated to
retaliate against the appellant for her protected activity, and there was little
evidence that the agency failed to discipline non -whistleblowers who engaged in
the same type of misconduct. ID at 3 7-57.
6
ANALYSIS
The appellant’s petition for review is granted .
¶8 The appellant asserts that the administrative judge abused his discretion in
denying her motion to compel.3 Petition for Review (PFR) File, Tab 5 at 38. The
appellant contends that she unders tood, when filing her February 28, 2017 motion
to compel, that “the discovery requests and statement on discoverability had been
included in her prior pleadings,” and she incorporated them by reference into her
later -filed motion in order to promote effici ency. Id. at 39. She claims that the
erroneous denial of her motion to compel prejudiced her because the information
she sought was relevant to her appeal. Id. at 40.
¶9 Administrative judges have broad discretion in discovery matters, and
absent a showing of an abuse of discretion, the Board will not substitute its
judgment for that of the administrative judge. McLaughlin v. U.S. Postal Service ,
55 M.S.P.R. 192 , 201 (1992). Further, an administrative judge may generally
waive a Board regulation for good cause shown. 5 C.F.R. § 1201.12 . Under
5 C.F.R. § 1201.73 (c)(1)(i), a motion to compel shall include a copy of the
original request and a statement showing that t he information sought is
discoverable. Nevertheless, the appellant had already submitted these documents
3 The appellant also asserts that the administrative judge improperly relied upon
evidence submitted by the agency after the hearing and thereby did not afford her an
opportunity to question witnesses regarding that evidence. PFR File, Tab 5 at 24 -26.
At the end of the hearing, the administrative judge kept the record open and permitted
the agency to submit this evidence. Hearing Transcript, Volume 2 at 482 -87. The
appellant raised no objection to that procedure and had an opportunity to respond to the
evidence after the agency submitted it to her. Id.; see W-3 AF, Tab 39 at 12 n.4,
Tab 40. Under these circumstances, sh e has shown no error in the administrative
judge’s reliance on this evidence. See Langford v. Department of the Treasury ,
73 M.S.P. R. 129 , 138 (1997) (finding that an appellant cannot wait until after an
adjudication is complete to object for the first time to an administrative judge’s
hearing -related rulings); cf. Schucker v. Federal Deposit Insurance Corporation ,
401 F.3d 1347 , 1357 -58 (Fed. Cir. 2005) (vacating and remanding a Board decision
when the administrative judge, in an appeal based on the written record, refused t o
consider rebuttal evidence without providing an explanation for that refusal, such as a
party’s failure to object to a deadline set by the administrative judge).
7
into the record and referenced them in her renewed motion to compel, and the
administrative judge had specifically notified the parties that any docum ent
previously submitted in the appeal should not be resubmitted upon refiling. IAF,
Tab 22 at 3 & n.2.
¶10 At least some of the discovery requests appear, on their face, to be
reasonably calculated to lead to the discovery of admissible evidence. 5 C.F.R.
§ 1201.72 (a); see Mc Grath v. Department of the Army , 83 M. S.P.R. 48 , ¶ 7
(1999) (holding that what constitutes relevant information in discovery is to be
liberally interpreted, and resolving any uncertainty in favor of the movant absent
undue delay or hardship). For example, the appellant requested that the agen cy
identify any and all actions taken as a result of her disclosure and protected
activity, as well as the date on which any employee learned of her disclosure and
protected activity, the name of such employee, and how the employee learned of
those matters . W -2 AF, Tab 5 at 5; IAF, Tab 17 at 44. She also requested a
description of each and every occasion on which agency employees
communicated with each other regarding the appellant’s disclosure and protected
activity. IAF, Tab 17 at 44. She requested th e production of documents relating
or referring to her disclosure and OSC complaints, as well as her reduction in
rank. Id. at 47 -48. The information requested appears reasonably calculated to
lead to the discovery of admissible evidence regarding, among other things,
whether the disclosure or protected activity was a contributing factor in a
personnel action and any motive to retaliate. See Salerno v. Department of the
Interior , 123 M.S.P.R. 230 , ¶¶ 5, 14 n.8 (2016).
¶11 Under these circumstances, we find that the administrative judge abused his
discretion in denying the appellant’s motion to compel based on a determination
that the motion did not include a copy of the original discovery request and a
statement showing tha t the information sought was discoverable. See Baird v.
Department of the Army , 517 F.3d 1345 , 1348, 1351 (Fed. Cir. 2008) (finding that
the ad ministrative judge abused his discretion in refusing to compel discovery
8
that should have been produced earlier, even though the discovery request was
made during the hearing); cf. McLaughlin , 55 M.S.P.R. at 201 (finding no error in
the administrative judg e’s waiver of the requirements of 5 C.F.R. § 1201.73 (c)
based upon the agency’s compelling interest in deposing the appellant).
¶12 Because the administrative judge is in the best position to rule on discovery
matters, we vacate the initial decision and remand the appeal. See Seattle Times
Co., et al. v. Rhinehart et al. , 467 U.S. 20 , 36 (1984) (“The trial court is in the
best position to weigh fairly the competing needs and interests of the parties
affected by discovery.”); 5 C.F.R. § 1201.41 (b)(4) (authorizing admin istrative
judges to rule on discovery motions); cf. In re Uriarte , 93 M.S.P.R. 183, ¶ 10
(2002) (finding that the administrative judge was in the best position to resolve
the question of whether the appellant had satisfied the test for obtaining a
protecti ve order, as well as the resolution of related discovery requests). The
administrative judge shall therefore rule on the merits of the appellant’s motion to
compel. If the administrative judge’s ruling on that motion leads to the
production of additional relevant evidence in support of the appellant’s claims,
the appellant shall be entitled to a further hearing. See Baird , 517 F.3d
at 1351 -52; Mc Grath , 83 M.S.P.R. 48 , ¶ 20. The administrative judge shall then
issue a new initial decision taking into consideration any e vidence and arguments
advanced after ruling on the motion to compel, insofar as they raise matters not
already fully decided.4 See Mc Grath , 83 M.S.P.R. 48 , ¶ 20; Johnson v.
Department of the Treasury , 8 M.S.P.R. 170 , 175 -76 (1981).
4 The appellant asserts that the administrative judge made erroneous factual and legal
findi ngs that were material to the initial decision. PFR File, Tab 5 at 26-33. On
remand, the administrative judge shall take into consideration these allegations, as well
as the agency’s response to the allegations, in making his findings. See Fox v. U.S.
Postal Service , 81 M.S.P.R. 522 , ¶ 17 (1999) (directing the administrative judge to
address on remand arguments raised by the appellan t on review) ; Spithaler v. Office of
Personnel Management , 1 M.S.P.R. 587 , 589 (1980) (requiring an initial decision to
identify all materi al issues of fact and law, summarize the evidence, resolve issues of
credibility, and include conclusions of law and legal reasoning, as well as the
authorities on which that reasoning rests).
9
¶13 Finally, the appellant asserts that the ad ministrative judge should have
granted her renewed motion for sanctions, which would have precluded the
agency from asserting its affirmative defense to her whistleblower claim. PFR
File, Tab 5 at 41 -43. The appellant contends that the imposed sanction o f
limiting the agency to three witnesses “did not remedy the harm that Appellant
suffered as a result of the Agency’s failure to comply with its discovery
obligations in this appeal,” and that the documents sought “may contain direct
evidence of whistleblo wer retaliation.” Id. at 41 -42.
¶14 In response to the appellant’s renewed motion for sanctions, which she filed
after the administrative judge had imposed the sanction of limiting the number of
agency witnesses, W -3 AF, Tab 26 at 9 -11, the administrative jud ge found that
the appellant had failed to justify additional sanctions and denied the motion, ID
at 2 n.2. An administrative judge may impose sanctions upon a party for failure
to comply with an order, provided that the sanction is necessary to serve the ends
of justice. 5 C.F.R. § 1201.43 (a). Sanctions should be imposed only when a
party has failed to exercise basic due diligence in complying with an order or has
exhibited negligence o r bad faith in its efforts to comply. Armstrong v.
Department of Justice , 107 M.S.P.R. 375 , ¶ 25 (2007) , overruled on other
grou nds by Edwards v. Department of Labor , 2022 MSPB 9 . In determining
whether sanctions are appropriate, good faith e fforts short of full compliance
must be considered. Id. The imposition of sanctions is a matter within the
administrative judge’s sound discretion, and absent a showing that such discretion
has been abused, his determination will not be found to constitu te reversible
error. Smets v. Department of the Navy , 117 M.S.P.R. 164 , ¶ 11 (2011), aff’d per
curiam , 498 F. App’x 1 (Fed. Cir. 2012).
¶15 The appellant does not identify on review the nature of the information she
sought below, nor does she explain how the sanction she seeks is necessary to
serve the ends of justice. Moreover, the documents in question appear related to
a discovery dispute involving claims of privilege raised by the agency, which
10
offered to submit the disputed documents to the administrative judge for an in
camera review or produce them subject to a protective order. W -3 AF, Tab 24
at 6, Tab 34 at 4- 9. The administrative judge, however, did not conduct an in
camera review or enter a protective order. Based on all of the above
circumstances, the appellant has not shown a failure by the agency to exercise
basic due diligence or bad faith warranting the sanction she suggests, nor has she
otherwise shown an abuse of discretion by the administrative judge in denying her
motion. The cases relied upon by the appellant are distinguishable from this
appeal. See Armstrong , 107 M.S.P.R. 375 , ¶¶ 25, 27 -28, 32 (finding no abuse of
discretion by the administrative judge in barring the agency from asserting its
IRA affirmative defense when i t failed to produce documents despite the
administrative judge having entered a protective order and denied its request for
an extension of time to assert a privilege claim); Montgomery v. Department of
the Army , 80 M.S.P.R. 435 , ¶¶ 3-5, 9 -10, 16 -17 (1998) (finding no abuse of
discretion in imposing sanctions when the agency failed to produce documents for
an in camera inspection and respond to repeated telephone messages from the
administrative judge).
The agency’s conditional cross petition for review is denied .
¶16 The agency asserts that, if the Board grants the appellant’s petition for
review, the Board should also find that the administrative judge’s imposition of
sanctions by limiting the number of witnesses it could call at the hearing was
unsupported and severely prejudicial. PFR File, Tab 9 at 13, 15 -16. The agency
contends that, although it produced a privilege log as requ ired by the
administrative judge, presented arguments on the privileges it asserted, and
offered the records for an in camera review or subject to a protective order, the
administrative judge did not review the records in camera, make substantive
rulings, or permit it to correct any deficiencies in its submission, but instead
sanctioned it for asserting legally cognizable privileges. Id. at 15.
11
¶17 As set forth above, the imposition of sanctions is a matter within the
administrative judge’s sound discretion. Smets , 117 M.S.P.R. 164 , ¶ 11.
Although the agency states why it believes the administrative judge’s actions
were erroneous and mak es a general statement that it was prejudiced by those
actions, it does not articulate what the excluded witnesses would have testified to
or explain how their testimony would affect the result reached in this case. Thus,
the agency has not established th at any alleged abuse of discretion or error by the
administrative judge was prejudicial. See Butler v. Department of the Air Force ,
73 M.S.P.R. 313 , 318 (1997); Best v. Department of the Navy , 59 M.S.P.R. 670 ,
673 (1993); Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984);
see also Jones v. Department of Health & Human Services , 119 M.S.P.R. 355 ,
¶ 18 (holding that the Board will not find reversible error in an administrative
judge’s discovery rulings absent an abuse of discretion that prejudiced the party’s
substa ntive rights), aff’d , 544 F. App’x 976 (Fed. Cir. 2013).
¶18 Accordingly, we deny the agency’s cross petition for review.
ORDER
¶19 For the reasons discussed above, we VACATE the initial decision and
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 | REQUENA_ROMMIE_DA_1221_16_0488_W_3_REMAND_ORDER_1983506.pdf | 2022-12-06 | null | DA-1221 | NP |
3,883 | https://www.mspb.gov/decisions/nonprecedential/DUNBAR_NADRA_K_DC_0752_14_1003_B_1_FINAL_ORDER_1983507.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
NADRA K. DUNBAR,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.
DOCKET NUMBER
DC-0752 -14-1003 -B-1
DATE: December 6, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Nadra K. Dunbar , Hyattsville , Maryland, pro se.
Michael Kuppersmith , Esquire, Sarah Sorg , Esquire, Stephen Andrew
Hench , Esquire, and Thomas P. Healy , 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 remand initial decision,
which affirmed the agency’s action removing her from her position for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required 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
misconduct, findi ng that she did not establish her affirmat ive defenses .2 On
petition for revie w, the appellant argues that the administrative judge improperly
decided the issue of her affirmative defenses, m ade adjudicatory errors, and was
biased against her. 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 appellant has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the remand initial
decision, which is n ow the Board’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
2 Because we discern no error with the administrative judge’s motivating factor analysis
or conclusion regarding th e appellant’s claim of retaliation for prior equal employment
opportunity activity, we do not reach the question of whether retaliation was a “but -for”
cause of the removal action. See Pridgen v. Office of Manage ment & Budget , 2022
MSPB 31 , ¶¶ 20-22, 29 -33.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failu re to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have que stions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must f ile a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washin gton, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
4
http://www.mspb.gov/probo no for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your repr esentative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requ irement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
5
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your 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
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The 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.
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.
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 | DUNBAR_NADRA_K_DC_0752_14_1003_B_1_FINAL_ORDER_1983507.pdf | 2022-12-06 | null | DC-0752 | NP |
3,884 | https://www.mspb.gov/decisions/nonprecedential/MACMULLIN_SUZANNE_PH_0842_21_0140_I_2_FINAL_ORDER_1983636.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SUZANNE MACMULLIN,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
PH-0842 -21-0140 -I-2
DATE: December 6, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence Berger , Esquire, Glen Cove, New York, for the appellant.
David M. Burns , Esquire and Sarah L. Montgomery , 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
affirmed the agency’s decision denying her application for Federal Employees’
Retirement System (FERS) law enforcement officer (LEO) retirement credit. 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 adm inistrative 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 reasons discussed below, we GRANT th e appellant’s petition for review and
REVERSE the initial decision . The appellant’s application for LEO retirement
credit is GRANTED.
BACKGROUND
¶2 The appellant worked in various law enforcement positions within the
Department of the Interior from Septemb er 17, 1995 , through January 7, 2006.
MacMullin v. Department of Homeland Security , MSPB Docket No. PH -0842 -21-
0141 -I-1, Initial Appeal File (IAF), Tab 8 at 13 -18. On January 8, 2006, she
transferred directly from one of these positions to a Supervisory Physical Security
Specialist position within the Department of Homeland Security, the respondent
agency in this appeal. Id. at 114. During her tenure in that position, the agency
“corrected” the appellant’s retirement plan code several times, switching it back
and forth between LEO -covered and non -LEO -covered, until finally settling on
LEO coverage. Id. at 9, 27 -35. On September 28, 2008, the appellant was
promoted to the position of Supervisory Criminal I nvestigator, which the agency
also coded for LEO coverage. Id. at 54-55. Thereafter, the agency maintained
records indicating that the appellant had been earning LEO retirement credit
throughout this entire period, and it continued deducting retirement c ontributions
at the LEO rate. IAF, Tab 8 at 60, Tab 13 at 19 -21, 71.
¶3 In June 2017, incidental to a retirement estimate request, the agency took
note of the multiple “corrections” that it had previously made to the appellant’s
retirement coverage code whil e she was serving as a Physical Security Specialist.
IAF, Tab 8 at 57 -59. The agency then embarked upon an extensive review of the
appellant’s employment history to determine whether there were any errors in her
retirement coverage. Id. at 57. On April 30, 2020, the agency notified the
appellant that her Physical Security Specialist position had not been approved for
LEO coverage, and because of this break in LEO -covered service, she also did not
meet the conditions of secondary LEO coverage for her ser vice as a Supervisory
3
Criminal Investigator. Id. at 60 -61. Thus, the appellant was informed for the
first time that none of her previous 14 years of service were creditable towards an
LEO retirement. The agency notified the appellant of her right to see k a
determination of coverage under 5 C.F.R. § 842.804 (c). Id. at 60 -61. The
appellant submitted a request for rigorous LEO coverage, and on February 4,
2021, the agency denied the requ est.2 Id. at 11 -134.
¶4 The appellant filed a Board appeal. IAF, Tab 1. After a hearing, the
administrative judge issued an initial decision affirming the agency’s decision.
MacMullin v. Department of Homeland Security , MSPB Docket No. PH -0842 -21-
0140 -I-2, Appeal File , Tab 12 , Initial Decision (ID) . Considering the appellant’s
position description and testimony regarding her day -to-day duties, the
administrative judge found “less than preponderant evidence that the purpose of
the subject position was law enforcement.” ID at 2 -6, 8-9.
¶5 The appellant has filed a petition for review, disputing the administrative
judge’s analysis. Petition for Review (PFR) File, Tab 5. The agency has
responded to the petition for review, and the appellant has filed a reply to the
agency’s response. PFR File Tabs 7 -8.
ANALYSIS
¶6 Under 5 U.S.C. § 8412 (d), an employee covered under FERS may retire at
age 50 after completing 20 years of LEO service , or at any age after co mpleting
25 years of LEO service. For purposes of FERS retirement coverage, there are
two types of LEO positions —rigorous and secondary. 5 C.F.R. § 842.803 (a)-(b).
Apart from details and temporary promotions, all service in a rigorous LEO
position is covered under 5 U.S.C. § 8412 (d). 5 C.F.R. § 842.803 (a)(1) -(2).
Service in a secondary LEO position is covered if the employee moves directly
2 The agency denied the request on both timeliness and substantive grounds. IAF,
Tab 8 at 123 -34. The parties brief ed the timeliness issue before the Board, and th e
administrative judge ruled that the appellant’s request was timely. IAF, Tabs 12 -15.
We agree with the administrative judge’s ruling, which the agency has not contested.
4
from a rigorous position to a secondary positi on, the employee has completed
3 years of service in a rigorous position, and the employee has be en continuously
employed in a secondary position without a break in service exceeding 3 days.
5 C.F.R. § 842.803 (b). The issue in this appeal is whether the appellant met the
conditions for coverage in a rigorous LEO position during her employment as a
Supervisory Physical Security Specialist from January 8, 2006 , through
September 27, 2008.3
¶7 An employee can qualify for LEO retirement credit in a rigorous position
either by serving in a position that has been approved as such, or by applying for
LEO credit and satisfying the employing agency that she is entitled to LEO
retirement credit because her actual duties primarily involve pursuing or
detaining criminals. Watson v. Department of the Navy , 262 F.3d 1292 , 1296
(2001); Bingaman v. Department of the Treasury , 127 F.3d 1431 , 1434 (Fed. Cir.
3 For reasons that are unclear, the appellant never attempted to claim secondary
coverage for her service as a Supervisory Physical Security Specialist (although the
agency’s decision denied both rigorous and secondary coverage) . The record was never
developed on this issue, and it was not addressed in the initial decision. Based on the
record before us, it seems highly likely that the appellant’s service in this position
satisfied the conditions for secondary coverage set forth in 5 C.F.R. § 842.803 (b)(1).
Nevertheless, because we find that the appellant’s service in this position qualified for
coverage under 5 C.F.R. § 842.803 (a), as service in a rigorous position, it is
unnecessary for us to remand the appeal for adjudication of the secondary coverage
issue.
Similarly, there is an unresolved issue of fact as to whether the agency head previously
made a determination, in accordance with 5 U.S.C. § 842.803 (a), .804(a), and .808(a),
that Supervisory Physical Security Specialist was a rigorous or secondary LEO position.
IAF, Tab 8 at 28 -29, Tab 13 at 10. If that were the case, there is a serious question as
to whether the agency had th e authority to revoke that determination retroactively
14 years later. An agency is authorized to retroactively designate a position as LEO
covered, but it does not appear that an agency is authorized to retroactively revoke such
coverage. See Office of Personnel Management, CSRS and FERS Handbook , Special
Retirement Provisions for Law Enforcement Officers, Firefighters, Air Traffic
Controllers, and Military Reserve Technician s, ch. 46, §§ 46A3.2 -6, 46B3.2 -3
(April 1998 ), https://www.opm.gov/retirement -services/publications -forms/csrsfers -
handbook/c046.pdf . We likewise decline to decide this issue because the appellant is
prevailing on other grounds.
5
1997); see 5 C.F.R. § 842.803 (a), .804. To prove entitlement to service credit for
the relevant period, the a ppellant must establish that she occupied a “rigorous
position whose primary duties [were] the investigation, apprehension, or
detention of individuals suspected or convicted of offenses against the criminal
laws of the United States, or the protection of officials of the United States
against threats to personal safety. ” 5 C.F.R. § 842.802 . Employees “whose
primary duties involve maintaining order, protecting life and property, guarding
against or inspecting for violations of law, or investigating persons other than
those who are suspected or convicted of offenses against the criminal laws of the
United States” are not entitled to rigorous LEO credit. Id.
¶8 During the pendency of the pe tition for review, the United States Court of
Appeals for the Federal Circuit issued a precedential decision directly addressing
the issues in this appeal. Klipp v. Department of Homeland Security , 34 F.4th
1326 (Fed. Cir. 2022). In particular, the court emphasized that “the Board must
make two independent findings: the first must be based on the position
description evidence alone, and if that finding is adverse to the emplo yee, the
second must be based solely on evidence of his or her actual duties.” Id. at 1333.
In this case, the administrative judge did not make these two independent
findings. Instead, she essentially weighed the appellant’s position description
against her day -to-day job duties, and concluded that the Supervisory Physical
Security Specialist position was not created for the purpose of law enforcement.
ID at 8 -9. This analysis is not consistent with the court’s holding in Klipp .
Nevertheless, because that the record is fully developed on the relevant issues, the
Board will apply the two -part analysis on review. See Vitale v. Department of
Veterans Affairs , 107 M.S.P.R. 501 , ¶ 16 (2007) (addressing the jurisdictional
issue for the first time on petition for review where the record on jurisdiction was
fully developed).
¶9 Considering the position description it self, we find that it does not denote
that Supervisory Physical Security Specialist is a rigorous LEO position. IAF,
6
Tab 8 at 194 -99. The summary description of the position indicates that the
incumbent is responsible “for the planning, operation and lea dership of assigned
security and enforcement activities,” and “serves as primary advisor to the
District Director regarding physical security, crime prevention and law
enforcement operations for an assigned geographic area.” Id. at 195. It does not
menti on investigation, apprehension, or detention of individuals or the protection
of officials of the United States. The long list of “major duties” that follows
covers duties associated with advising the Director, monitoring the effectiveness
of personnel, c onducting security assessments, acting as a liaison between the
agency and various third parties, data collection and analysis, and work planning.
Id. at 196 -97. The last category of “major duties” concerns “duties as a law
enforcement official,” perform ed “[o]n a recurring basis.” Id. at 197. The
position description provides that the incumbent is authorized to carry a firearm
and make arrests, but it goes on to say that this law enforcement work concerns
the protection of life, property, and the right s of individual citizens, as well as
enforcement of compliance with laws and regulations. Id. This type of work
does not qualify as LEO work under 5 C.F.R. § 842.802 . The position desc ription
ends by stating that the incumbent “arrests offenders and provides police
assistance during emergency and/or life threatening situations,” which does
qualify as rigorous LEO work, see 5 C.F.R. § 842.802 , but in the context of the
position description as a whole, such work does not appear to constitute a
Supervisory Physical Security Specialist’s primary duties, IAF, Tab 8 at 198.
Furthermore, although the position description refe rs to “medical testing
requirements,” these requirements are not specified, and there are no provisions
for maximum entry or minimum retirement ages. Id. at 199. For these reasons,
we find that the position description does not describe a LEO position as defined
in 5 U.S.C. § 8401 (17). Rather, we find that the position description is akin to
the one at issue in Watson , 262 F.3d at 1303 -04, which the court found did not
7
primarily consist of the in vestigation, apprehension or detention of criminals or
suspected criminals.
¶10 Turning to the second inquiry, we find that evidence of the appellant’s
actual job duties is sufficient to establish that her service as a Supervisory
Physical Security Specialist was creditable as service in a rigorous LEO position.
Physical vigorousness and hazardousness are the major factors to be considered in
determining a Federal employee’ s LEO status based on actual duties. Klipp ,
34 F.4th at 1332; Crowley v. United States , 398 F.3d 1329 , 1338 -39 (Fed. Cir.
2005). “Physical vigorousness,” is the first and predominate factor. Crowley ,
398 F.3d at 1339. “The relev ant considerations in any vigorousness
determination are whether or not the position brings with it (in order of
importance): 1) strenuous physical fitness requirements; 2) age requirements
(such as a mandatory retirement age or a maximum entry age); or 3) a
requirement that an employee be on call twenty four hours a day.” Id. As to the
first subfactor, the record in this case shows that the appellant’s position had
strenuous physical fitness requirements. Prior to her appointment, the appellant
was requ ired to take and pass a demanding physical fitness examination that
included a 1 .5 mile run, agility, bench press, body composition, and flexibility
requirements. Hearing Transcript (Tr.) at 29 -30 (testimony of the appellant) .
Furthermore, during her ent ire tenure in this position, the appellant was required
to participate quarterly in a rigorous defensive tactics course that included
handcuffing and ground fighting, and she employed these skills frequently in the
execution of her job duties. Tr. at 21 -22, 31, 33 -34 (testimony of the appellant),
123 (testimony of the Regional Director). The agency also afforded the appellant
3 hours every week of on -duty “fitness time” during which she was encouraged to
go to the gym and maintain her physical conditionin g. Tr. at 31 (testimony of the
appellant). Regarding the second subfactor, it is undisputed that there was no
maximum entry or minimum retirement age for Supervisory Physical Security
Specialists. Tr. at 81 -83 (testimony of the appellant). Regarding th e third
8
subfactor, it is also undisputed that the appellant was on call 24 hours per day.
Tr. at 18 -19 (testimony of the appellant). Considering these three subfactors
together and assigning them weight in accordance with their importance, we find
that t he physical vigorousness factor is satisfied. We therefore move on to the
hazardousness factor. See Crowley , 398 F.3d at 1339.
¶11 To determine hazardousness, the Board will “consider whether the position
(in order of importance): requires frequent and cons istent contact with criminal
suspects on the part of the employee (including interrogation of suspects and
pursuit or detention of criminals); or authorizes the employee to carry a firearm.”
Crowley , 398 F.3d at 1339. The record in this appeal shows that both of thes e
subfactors are satisfied. Fir st, the appellant estimated that, during the 33 months
that she served as a Supervisory Physical Security Specialist, she made on
average 1 or 2 arrests per month, for a total of approximately 40 or 50 arrests. Tr.
at 15 -16 (testimony of the appellant). She also testified that, apart from
individuals whom she actually arrested, she had contact with criminal suspects
multiple times per week, and t hat this was a “constant” part of her job. Tr. at 17
(testimony of the appellant). The appellant’s testimony in this regard is not in
dispute. Nor is it disputed that the appellant was authorized to carry a firearm.
Tr. at 19 (testimony of the appellan t). In fact, firearms qualification was a part of
the quarterly defensive tactics course discussed above. Tr. at 32 -33 (testimony of
the appellant). In any event, the administrative judge credited the appellant’s
testimony that she spent at least half o f her working time, about 60%, pursuing
criminal investigations. ID at 5 -6; Tr. at 24 (testimony of the appellant), 122 -23
(testimony of the Regional Director). We therefore find that the appellant’s job
duties satisfy the hazardousness factor as well. See Klipp , 34 F.4th at 1333
(explaining that, under Federal Circuit precedent, an individual who is authorized
to carry a firearm and spends 50% or more of her time pursuing criminal
investigations likely satisfies the hazardousness requirement).
9
¶12 The admin istrative judge acknowledged that the appellant regularly
performed rigorous LEO duties during the course of her employment as a
Supervisory Physical Security Specialist. However, she found that this was not a
function of the appellant’s position as set f orth in the position description and
was instead an unintended consequence attributable to the unavailability of
Special Agents to perform rigorous LEO work in her area. ID at 8 -9. However,
this situation, where the employee’s actual experience of the jo b differs
substantially from the official position description, is exactly what the two -part
inquiry was meant to address. See Klipp , 34 F. 4th at 1332; Crowley , 398 F.3d
at 1340. By considering evidence of the position description and the
appellant’s actual job duties together rather than separately, the administrative
judge did not reach the central issue of whether, in the real world, the service that
the appellant actually rendered as a Supervisory Physical Security Specialist
consisted primarily of r igorous LEO duties. For the reasons explained above, in
our application of the two-step analysis , we conclude that it did.
ORDER
¶13 We ORDER th e agency to grant the appellant the appropriate amount of
LEO retirement credit. The agency must complete this act ion no later than
20 days after the date of this decision. In connection with these awards, the
appellant is ORDERED to make appropriate arrangements with the agency to
deposit into the Civil Service Retirement and Disability Fund an amount to cover
the h igher withholding rate that applies to LEO positio ns.
¶14 We also 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 appell ant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181 (b).
¶15 No later than 30 days after the agency tells the appellant that it has fully
carried out th e Board’s Order, the appellant may file a petition for enforcement
10
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 re asons 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).
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 requ irements, 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 HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with whi ch to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
approp riate 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 app licable to your claims and carefully follow all
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of revi ew rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
11
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
12
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this cas e, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, co lor, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.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:
13
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEO C via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protect ed activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited p ersonne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or a ny court
of appeals of competent jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower r eprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
14
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained wit hin the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for info rmation regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/Court Websites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MACMULLIN_SUZANNE_PH_0842_21_0140_I_2_FINAL_ORDER_1983636.pdf | 2022-12-06 | null | PH-0842 | NP |
3,885 | https://www.mspb.gov/decisions/nonprecedential/AMOS_BRENT_W_DA_4324_17_0241_I_1_FINAL_ORDER_1983046.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BRENT W. AMOS,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
DA-4324 -17-0241 -I-1
DATE: December 5, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shaun Yancey , Esquire , Atlanta, Georgia , for the appellant .
Steven R. Simon , Esquire, Phoenix, 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
dismissed his appeal under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C.
§§ 4301 -4335) (USERRA) for lack of jurisdiction . On petition for review, the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential or ders,
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 Bo ard
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
appellant argues that the administrative judge erred in dismissing his appeal
because he has an unconditional right to a hearing on his USERRA claim and that
the agency took the identified actions against him in “reprisal ” for e ngaging in
“protected activity .” 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 statut e
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
discret ion, 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 gran ting the petition for review.2
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 First, we find that, because the appellant failed to establish Board
jurisdiction over his appeal , he is not entitled to a hearing . Downs v. Department
of Veterans Affairs , 110 M.S.P.R. 139, ¶¶ 17-18 (2008) (holding that a USERRA
claimant is entitled to a hearing only upon establishing Boa rd jurisdiction over
his appeal). Second, to the extent the appellant is claiming reprisal for engaging
in protected USERRA activity, he has not alleged that he exercised his rights
2 We have reviewed the appellant’s alleged new evidence submitted on review and have
determined th at it is either contained in the record below or is not material to his
appeal. Therefore, it provides no basis to disturb the initial decision. Russo v. Veterans
Administration , 3 M.S.P.R. 345 , 349 (1980) (holding that the Board will not grant a
petition for review based on new evidence absent a showing that it is of sufficient
weight to warrant an outcome different from that of the initial decision); Meier v.
Department of the Interior , 3 M.S.P.R. 247 , 256 (1980) (holding that evidence that is
already a part of the record is not new).
3
under USERRA or otherwise engaged in protected activity under the statute prior
to filing this Board appeal despite the administrative judge’s jurisdictional notice
in this regard. See 38 U.S.C. § 4311 (b); Brasch v. Department of Transportation ,
101 M.S.P.R. 145 , ¶ 10 (2006) (setting forth the jurisdictional requirements for a
USERRA retaliation claim). Third, to the extent the appellant is cla iming reprisal
for engaging in protected equal employment opportunity activity, the
administrative judge properly found that, absent an appealable action, the Board
lacks jurisdiction over his attendant claims. See Metzenbaum v. Department of
Justice , 89 M.S.P.R. 285 , ¶ 15 (2001) (holding that the Board’s authority
concerning USERRA complaints or appeals does not extend beyond the
complained -of discrimination because of military status, does not allow for a
decision on the merits of the underlying matter except to the extent nec essary to
address the appellant’ s military status discrimination claims, and thus does not
include a review of other claims of prohibited discrimination ). The appellant
therefore has shown no basis to disturb the initial decision.
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 of fer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rul e regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
3 Since the issuance of the initial decision in this ma tter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
filing time limits and requirements. Failure to file withi n the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whe ther a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition f or review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an 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.
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 unlawfu l discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision . 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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. 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 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.4 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).
4 The original statutory provision that provided for judicial rev iew of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services p rovided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | AMOS_BRENT_W_DA_4324_17_0241_I_1_FINAL_ORDER_1983046.pdf | 2022-12-05 | null | DA-4324 | NP |
3,886 | https://www.mspb.gov/decisions/nonprecedential/ROSARIO_FABREGAS_JOSE_E_NY_0752_13_0142_C_1_ORDER_1983074.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOSE E. ROSARIO -FABREGAS,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
NY-0752 -13-0142 -C-1
DATE: December 5, 2022
THIS ORDER IS NONPRECEDENTIAL1
Jose E. Rosario -Fabregas , San Juan, Puerto Rico, pro se.
Elizabeth Vavrica and Elizabeth Moseley , Jacksonville, Florida, for the
agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
ORDER
¶1 The appellant has filed a petition for review of the compliance initial
decision, which granted in part his petition for enforcement . In his petition for
review, the appellant reasserts that the agency is in noncompliance with the
Board’s order regarding his return to duty, he disputes the instructions included in
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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 administrative judge’s compliance initial decision, and he presents several
arguments pertaining to prior appeals already disposed of by the Board.
Generally, we grant petitions such as this on e 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 cas e; 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 mater ial
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 A FFIRM the compliance initial
decision, referring the petition for enforcement to the Board’s Office of General
Counsel for additional processing and issuance of a final decision. See 5 C.F.R.
§ 1201.1 83(c).
¶2 Outstanding issues of compliance remain as to the appellant’s back pay and
interest, information provided to the Social Security Administration for
withholdings, and the appellant’s Thrift Savings Plan. T he agency submitted
argument and evidence on June 16, August 11, October 10, October 20, and
November 21, 2017 , which have been entered into the record in MSPB Docket
No. SF -0752 -13-0142 -X-1. The Board’s Acknowledgment Order for MSPB
Docket No. SF -0752 -13-0142 -X-1, dated June 16, 2017, includes instructions for
how the parties must proceed in that matter, which is pending before the Board’s
Office of General Counsel.
3
¶3 All subsequent filings should refer to MSPB Docket No. NY-0752 -13-0142 -
X-1 and should be faxed to ( 202) 653 -7130 or mailed to the following address:
Clerk of the Board
U.S. Merit Systems Protection Board
1615 M Street, N.W.
Washington, D.C. 20419
Submissions may also be made by electronic filing at the MSPB’s e -Appeal site
(https://e -appeal.mspb.gov) in accordance with the Board’s regulation at 5 C.F.R.
§ 1201.14 .
¶4 The agency is reminded that if it fails to provide adequate evidence of
compliance, the responsible agency official and the agency’s representative may
be required to appear before the Office of the General Counsel of the Merit
Systems Protection Board to show cause why the Board should not impose
sanctions for the agency’s noncompliance in this case. 5 C.F.R. § 1201.183 (c).
The Board’s authority to impose sanctions includes the authority to order that the
responsible agency official “shall not be entitled to receive payment for service as
an employee dur ing any period that the order has not been complied with. ”
5 U.S.C. § 1204 (e)(2)(A).
¶5 This Order does not constitute a final order and is therefore not subject to
judicial review under 5 U.S.C. § 7703 (a)(1). Upon the Board’s final resolution of
the remaining issues in this petition for enforcement, a final order shall be issued
which shall be subject to judicial review.
FOR THE BOARD:
Was hington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ROSARIO_FABREGAS_JOSE_E_NY_0752_13_0142_C_1_ORDER_1983074.pdf | 2022-12-05 | null | NY-0752 | NP |
3,887 | https://www.mspb.gov/decisions/nonprecedential/AMOS_BRENT_W_DA_0752_98_0122_I_1_FINAL_ORDER_1983172.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BRENT W. AMOS,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
DA-0752 -98-0122 -I-1
DATE: December 5, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shaun Yancey , Esquire , Atlanta, Georgia , for the appellant .
Cyntrena Cross -Peart , 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 removal appeal as settled . For the reasons set 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).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 A petition for review must be filed within 35 days after the issuance of the
initial decision. See 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(g). To establish good cause for the untimely filing of a
petition, an appellant must show that he exercised due diligence or ordinary
prudence under the particular circumstances of his case. Alonzo v. Department of
the Air Force , 4 M.S.P.R. 180 , 184 (1980) .
¶3 The discovery of new evidence may establish good cause for the untimely
filing of a petition for review if the evidence was not readily available befor e the
close of the record below and is of sufficient weight to warrant a different
outcome from that of the initial decision. See Jones v. Department of
Transportation , 69 M.S.P.R. 21 , 26 (1995), aff’d , 111 F.3d 144 (Fed. Cir. 1997)
(Table). Whe n, as here, the initial decision dismissed an appeal as settled, newly
discovered evidence would warrant a different outcom e—thus establishing good
cause for an untimely petition for revie w—if the evidence showed that the
settlement agreement was invalid. Id. A settlement agreement is a contract
between the parties and, as such, may be set aside or voided only on the basis of
certain limited grounds, including fraud, coercion , or mutual mistak e. Hamilton
v. Department of Veterans Affairs , 92 M.S.P.R. 467 , ¶ 7 (2002).
¶4 On April 17, 2017, t he appellant filed a petition for review of the March 16,
1998 initial decision , approximately 19 years late . Petition for Review (PFR)
File, Tab 2. He asks the Board to set aside its filing deadline because of his
discovery of alleged new evidence o n Fe bruary 15, 2017 , that purportedly showed
that the agency breached the 1998 settlement agreement . PFR File, Tab 4. The
3
alleged new evidence does not relate to or challenge the validity of the
agreement.2
¶5 The appellant filed his petition for review 61 day s after discover ing the
alleged new evidence. PFR File, Tabs 2, 4. We find his delay demonstrates that
he failed to exercise due diligence in filing his petition for review. See Graves v.
Department of Veterans Affairs , 82 M.S.P.R. 38 , ¶ 12 (1999) ( finding that the
appellant failed to show good cause for the late filing of his petition for review
when he waited over 1 month after disc over ing alleged evidence of fraud in the
settlement before filing a pleading with the Board); Saunders v. Department of
the Interior , 56 M.S.P.R. 671 , 673 –74 (1993) ( explaining that the appellant did
not show due diligence or ordinary prudence whe n he delayed for 8 weeks before
raising the agency’ s alleged misrepresentation in relation to a settlement
agreement).
¶6 Even if the appellant could demonstrate that he exercised due diligence in
filing his petition, we find that the proffered new evidence is not of sufficient
weight to warrant an outcome different from the initial decision because the
evidence does not relate in any way to the validi ty of the settlement agreement at
issue . See Ramey v. Merit Systems Protection Board , 476 F. App’x 253 , 256
(2012) (affirming the Board’s dismiss ing a petition for review as untimely filed
when, among other things, the proffered new evidence did not relate to the
validity of the settlement agreement and therefore was unlikely to change the
result of the initial decision )3; Jones , 69 M.S.P.R. at 26.
2 The appellant’s allegations of breach of the 1998 settlement agreement are addressed
separately by the Board in a compliance proceeding. Amos v. Department of Justice ,
MSPB Docket No. DA -0752 -98-0122 -C-2.
3 The Boa rd 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).
4
¶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 regardin g the dismissal of the appellant’s removal appeal as settled .
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with 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 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
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
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposi tion of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017) . If you have a
6
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.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
with the EEOC no later than 30 calendar days after your representative 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:
7
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.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Fede ral Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
5 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 intere sted in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appel lants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | AMOS_BRENT_W_DA_0752_98_0122_I_1_FINAL_ORDER_1983172.pdf | 2022-12-05 | null | DA-0752 | NP |
3,888 | https://www.mspb.gov/decisions/nonprecedential/AMOS_BRENT_W_DA_4324_17_0286_I_1_FINAL_ORDER_1982760.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BRENT W. AMOS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DA-4324 -17-0286 -I-1
DATE: December 2, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shaun Yancey , Esquire, Atlanta, Georgia , for the appellant .
Nadia K. Pluta , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C.
§§ 4301 -4335) (USERRA) for lack of jurisdiction . On petition for review, the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
appellant generally challenges the dismissal and specifically argues that the
administrative judge erred in finding that the Office of Personnel Management
was not his “employer” for purposes of USERRA. Generally, we grant peti tions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the 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.2 Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 On review, the appellant filed a motion for sanctions, arguing that th e
Board should sanction the agency for an alleged abuse of discretion in responding
to this appeal and in handling his retirement benefits. Petition for Review File,
Tab 5. After considering his arguments, we deny the motion. The appellant has
identifie d no justification for the imposition of sanctions. See A rmstrong v.
Department of Justice , 107 M.S.P.R. 375 , ¶ 25 (2007 ), overr uled on other
grounds by Edwards v. Department of Labor , 2022 MSPB 9 , ¶ 20.
2 We have reviewed the appellant’s alleged new evidence submitted on review and have
determined that it is either contained in the record below or is not material to his
appeal. Therefore, it provid es no basis to disturb the initial decision. Russo v. Veterans
Administration , 3 M.S.P.R. 345 , 349 (1980) (holding that the Board will not grant a
petition for review based on new evidence absent a showing that it is of sufficient
weight to warrant an outcome different from that of the initial decision); Meier v.
Department of the Interior , 3 M.S.P.R. 247 , 256 (1980) (holding that evidence that is
already a part of the record is not new).
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 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:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review r ights 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 particu lar
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services p rovided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017) . If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination 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 rev iew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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 describe d in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 app eals 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 repri sal 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 | AMOS_BRENT_W_DA_4324_17_0286_I_1_FINAL_ORDER_1982760.pdf | 2022-12-02 | null | DA-4324 | NP |
3,889 | https://www.mspb.gov/decisions/nonprecedential/AMOS_BRENT_W_DA_0752_98_0122_C_2_FINAL_ORDER_1982778.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BRENT W. AMOS,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
DA-0752 -98-0122 -C-2
DATE: December 2, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shaun Yancey , Esquire, Atlanta, Georgia , Texas, for the appellant .
Steven R. Simon , Esquire , Phoenix, 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 compliance initial
decision, which denied his petition for enforcement of a settlement agreement that
he entered into with the agency in 1998 . On petition for review, the appellant
argues that the administrative judge improperly determined that the agency
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
produced credible evidence of compliance, emphasizing that the agency produced
two conflicting affidavits concerning its compliance . Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findin gs of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the in itial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligen ce, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review.2 Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nat ure of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
2 We have reviewed the appellant’s alleged new evidence submitted on review and have
determined that it is either contained in the record below or is not material to his
appeal. Therefore, i t provides no basis to disturb the compliance initial decision.
Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980) (holding that the Board
will not grant a petition for review based on new evidence absent a showing that it is of
sufficient weight to warrant an outcome different from that of the initial decision);
Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256 (1980) (holding that evidence
that is already a part of the record is not new).
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
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with 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:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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 discrimination. If so, you may obtain
judic ial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decis ion. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
5
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, 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 prot ected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (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.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at 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.
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/ CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | AMOS_BRENT_W_DA_0752_98_0122_C_2_FINAL_ORDER_1982778.pdf | 2022-12-02 | null | DA-0752 | NP |
3,890 | https://www.mspb.gov/decisions/nonprecedential/AMOS_BRENT_W_DA_1221_18_0129_W_1_FINAL_ORDER_1982792.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BRENT W. AMOS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DA-1221 -18-0129 -W-1
DATE: December 2, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shaun Yancey , Esquire, Atlanta, Georgia , for the appellant.
Kate Hudson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appel lant 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 primarily challenges the Board’s designation of
the Office of Personnel Man agement as the respondent agency rather than his
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
former employing agency . 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 p rocedures 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. Tit le 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.2
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
2 We have reviewed the appellant’s alleged new evidence submitted on review and have
determined that it is either contained in the record below or is not material to his
appeal. Therefore, it provid es no basis to disturb the initial decision. Russo v. Veterans
Administration , 3 M.S.P.R. 345 , 349 (1980) ( explaining that the Board will not grant a
petition for review based on new evidence absent a showing that it is of sufficient
weight to warrant an outcome different from that of the initial decision); Meier v.
Department of the Interior , 3 M.S.P.R. 247 , 256 (1980) ( explaining that evidence that is
already a part of the record is not new).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of re view rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
appropriate for your situation and the rights described below do not represent a
statement of how cou rts will rule regarding which cases fall within their
jurisdiction. If you wish to 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 t o file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questio ns
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington , D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contai ned within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono f or information regarding pro bono representation
4
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a give n case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that 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 days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for rev iew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhan cement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competen t jurisdiction.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, 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 | AMOS_BRENT_W_DA_1221_18_0129_W_1_FINAL_ORDER_1982792.pdf | 2022-12-02 | null | DA-1221 | NP |
3,891 | https://www.mspb.gov/decisions/nonprecedential/MAGIN_LISA_NY_1221_15_0069_W_1_REMAND_ORDER_1982794.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LISA MAGIN,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency .
DOCKET NUMBER
NY-1221 -15-0069 -W-1
DATE: December 2, 2022
THIS ORDER IS NONPRECEDENTIAL1
James E. Carney , Buffalo, New York, for the appellant .
Sheila Q. Weimer , Esquire, Buffalo, New York, for the agency .
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
REMAND ORDE R
¶1 The agency has filed a petition for review of the initial decision, which
granted the appellant’s request for corrective action in this individual right of
action (IRA) appeal . For the reasons discussed below, we GRANT the agency’s
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
petition for review , VACATE the initial decision, and REMAND the case to the
field office for further adjudication in accordance with this Remand Order.
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 The appellant was a Medical Supply Technician at a n agency medical center
in Buffalo, New York, working in the Sterile Processing Service (SPS)
department. Initial Appeal File (IAF), Tab 18 at 15, Tab 56, Initial Decision (ID)
at 4. She alleged that, beginning in 2010, she reported to her managers that some
of her coworkers were not perform ing their work , and that medical equipment
was not being properly cleaned and maintained . E.g., IAF, Tab 3 at 5, Tab 11
at 6, Tab 36, Subtab C. According to the appellant, her coworkers retaliated
against her for making these repo rts by leaving her to work alone. IAF, Tab 11
at 6. She further alleged that in November 2011, one coworker hit her with his
shoulder, and in January 2012, another coworker swore at her during a workplace
dispute. IAF, Tab 36, Subtab C at 6-7. She stopped reporting to work 3 days
after the latter incident , citing work -related depression, anxiety, and panic
disorder. ID at 6; IAF, Tab 18 at 43-46, 53, 56 -67.
¶3 Over the following months, the appellant requested a reasonable
accommodati on and filed a claim f or worker s compensation benefits, both of
which were denied. ID at 6-7; IAF, Tab 18 at 41. She also filed equal
employment opportunity complaints, which appear to have challenge d the denial
of her accommodation request and alleged racial harassment and d iscrimination
by her managers and coworkers. IAF, Tab 18 at 26, 27 -29.
¶4 During the appellant’s absence, t he agency appointed a new director of the
medical center. ID at 6. The new director reassigned and replaced the
appellant’s former supervisor and manager. ID at 7. The appellant’s new acting
manager proposed the appellant’s removal in January 2013 for excessive absence.
IAF, Tab 18 at 33-34. The director sustained the charge and removed the
appellant, effective March 2013. Id. at 22-23.
3
¶5 Follo wing her removal, the appellant filed a whistleblower retaliation
complaint with the Office of Special Counsel (OSC).2 IAF, Tab 3 at 11-15. After
closing its case, OSC notified the appellant of her Board appeal rights. IAF,
Tab 3 at 5, Tab 11 at 4-7. T his IRA appeal followed. IAF, Tab 1.
¶6 The administrative judge held the appellant’s requested hearing and issued
an initial decision, granting corrective action. ID at 2. The agency has filed a
petition for review. Petition for Review ( PFR ) File, Tabs 1-2. The appellant has
filed a response.3 PFR File, Tab 5. The agency has replied. PFR File, Tab 4.
The administrative judge must make new jurisdictional findings, specifically
identify ing the disclosures and personnel actio ns that are properly befo re
the Board .
¶7 The Board has jurisdiction over an IRA appeal if the appellant exhausts 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 disclos ure or protected activity was a contributing factor
in the agency’s decision to take or fail to take a personnel action as defined by
5 U.S.C. § 2302 (a).4 5 U.S.C. §§ 1214 (a)(3), 1221(e)(1) . The Board has recently
2 In its decision to remove the appellant, the agency provided notice that she could file
an adverse action appeal with the Board or a whistleblower complaint with OSC, and
the preclusive effect of her choice . IAF, Tab 18 at 22-23. The appellant elected to file
a complaint with OSC. IAF, Tab 3 at 11-15.
3 In addition to her response to the agency’s petition for review, the appellant filed a
motion for consequential and other damages. PFR File, Tab 9. The agency has
responded to that motion. PFR File, Tabs 6, 8. In light of our disposition, we will not
address th ese matters at this time.
4 As detailed above, this case involves alleged disclosures that occurred prior to the
effective date of the Whistleblower Enhancement Protection Act of 2012 (WPEA), and
alleged personnel actions that occurred both bef ore and after that date. See WPEA,
Pub. L. No. 112-199, § 202, 126 Stat. 1465 , 1476 (indicating tha t the WPEA would take
effect 30 days after its enact ment date of November 27, 2012). The Board has held
that, when the appellant’s protected disclosure or activity occurred before, but the
relevant personnel actions occurred after the December 27, 2012 effective date of the
WPEA, the WPEA should be applied because the agency knew of the pa rties’ rights,
4
clarified the substantive requirements of exhaustion. Chambers v. Departme nt 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. Id.
¶8 Although the appellant submitted what appears to be her initial complaint to
OSC, it does not detail her alleged disclosures. IAF, Tab 3 at 11-15. The record
does, however, include notes dated April 2010 to January 2012, which the
appellant reportedly provided to OSC in concert with her complaint. IAF,
Tab 36, Subtab C; ID at 5. Many of those notes detail interpersonal conflicts she
had with coworkers in the SPS department, and some suggest that she may have
raised these and other issues with managers. IAF, Tab 36, Subtab C. The record
next includes OSC’s preliminary determination letter, which described the a lleged
disclosures before it as follows:
[Y]ou reported to [the SPS manager] that medical equipment was not
being thoroughly cleaned, employees were not wearing the
appropriate personal protective equipment, dental hand pieces were
not being properly sanitized, crash carts were not being stocked with
respiratory equipment, and other issues .
IAF, Tab 11 at 6. Th rough her representative, the appellant responded to this
preliminary determination letter from OSC, asserting that her disclosures began in
2010 and were ongoing. Id. at 8. She further alleged that her disclosures were
protected because they identified a “significant adverse effect on public health
and safety.” Id. at 9. In addition, she asserted that while OSC’s letter referred
only to disclosures to the SPS manager, the OSC and an inspector general “were
also made aware.” Id. at 8. OSC’s subsequent closeout letter does not further
describe the appellant’s disclosures, except to conclude that while she did make
disclosures to OSC and an inspector general, those disclosures occurred after her
removal. Id. at 4; IAF, Tab 26 at 45-48.
liabilities, and duties under the WPEA when it took, or failed to take, the personnel
actions. See Pridgen v. Office of Management & Budget , 2022 MSPB 31 , ¶¶ 50 -51. On
remand, the administrative judge should apply the law as appropriat e to each
personnel action.
5
¶9 In concert with this IRA appeal, the appellant has described her disclosures
in a number of ways. For example, in her initial pleading, she described her
disclosures as ones of “gross safety and health violations having significant effect
on public health and safety .” IAF, Tab 1 at 6. Later, she described her
disclosures as concerning “coworkers’ non -adherence to proper safety and health
procedures.” IAF, Tab 16 at 5. In yet another pleading, in which she responded
to an agency interrogatory asking tha t she identify and detail each disclosure, the
appellant presented som ewhat different allegations, as follows:
Informed [her SPS manager and four other individuals at her medical
center] of problems in SPS such as black employees playing the
radio loudly on a racially biased station and not allowing anyone to
change the channel, loudly goldbricking, talking on the phone while
they were supposed to be working [,] their failure to use personal
protective equipment, improper sterilization techniques, non
atten dance [sic] to proper cleaning techniques, leaving the work site
for hours on end, lea ving complainant to take up the slack .
IAF, Tab 26 at 11-12, 33 -34.5
¶10 The record is similarly unclear regarding the personnel actions properly
before us. OSC’s prelim inary determination and closeout letters identify the
appellant’s removal and an alleged hostile work environment. IAF, Tab 11 at 4-7.
However, the appellant’s interim response also may implicate other matters,
including an alleged failure to accommodate, retain, restore, transfer, or reassign
her. Id. at 15.
¶11 In the pleadings submitted throughout this IRA appeal, the appellant
initially referred to a hostile work environment, removal, and refusal to
accommodate or transfer. IAF, Tab 1 at 6. She later responded to the agency’s
5 It does not appear that the appellant alleged below that she was retaliated against for
protected activ ity. See Rebstock Consolidation v. Department of Homeland Security ,
122 M.S.P.R. 661 , ¶¶ 5-7 (2015) (discussing the WPEA’s expansion of the grounds
upon which an IRA appeal may be filed to include protected activity); ID at 10-11.
However, if she raised these issues below or asserts them on remand, the administrative
judge should adjudicate them consistent with this order.
6
motion to dismiss by alleging that her disclosures were a contributing factor in
her removal, while also referring to reasonable accommodation, generally. IAF,
Tab 16 at 4-5.
¶12 The administrative judge issued an order finding that the Board had
jurisdiction over the instant appeal. IAF, Tab 9 at 1. However, she did not
identify the alleged disclosures and personnel actions that the appellant proved
she exhausted with OSC. She identified the personnel action at issue as the
appellant’s removal, but did not identify the alleged protected disclosures ,
mention any other alleged personnel actions , or make findings as to whether the
appellant’s allegations were nonfrivolous . Id. at 1, 3. The initial decision
provides lit tle clarity on these matters . ID at 10-13. For example, the
administrative judge reverse d the appellant’ s removal because she found that the
appellant’s absence was caused by her coworkers’ retaliatory harassment. ID
at 10-13 & n.3 . Yet, there is no finding that the Board has jurisdiction over this
alleged harassment . ID at 2.
¶13 An initial decision must identify all material issues of fact and law,
summarize the evidence, resolve issues of credibility, and include the
administrative jud ge’s conclusions of law and her legal reasoning, as well as the
authorities on which that reasoning rests . Spithaler v. Office of Personnel
Management , 1 M.S.P.R. 587 , 589 (1980). Because the administrative judge
failed to identify and fully analyze each of the appellant’s alleged disclosures and
personnel actions, we must remand this appeal . See, e.g., Mastrullo v.
Department of Labor , 123 M.S.P.R. 110 , ¶ 14 (2015) (remanding for an
administrative judge to identify and analyze each of the appellant’s
alleged disclosures).
¶14 On remand, the administrative judge should issue an order directing the
appellant to identify each disclosure and personnel action at issue in this appeal.
See Keefer v. Department of Agriculture , 92 M.S.P.R. 476 , ¶ 18 n.2 (2002)
(cautioning that an appellant who fails to articulate his claims with reasonable
7
clarity and precision risks being found to have failed to meet his burden). The
order should direct the appellant to identify the nature of the disclosure or action ,
when it occurred, and the individuals involved . The order also should direct the
appellant to prove she has met the requirements of exhaustion . The Board’s
jurisdiction is limited to those issues that have been previously raised with OSC.
Chambers , 2022 MSPB 8 , ¶¶ 10-11. Howev er, 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 the appellant’s written responses to OSC referencing
the amended allegations . An appellant may also establish exhaustion through
other suffi ciently reliable evidence, such as an affidavit or declaration attesting
that the appellant raised with OSC the substance of the facts in the Board
appeal. Id.
¶15 In advising the appellant of her burden , the administrative judge should
include the standard for establishing a harassment claim articulated in Skarada v.
Department of Veterans Affairs , 2022 MSPB 17 , ¶¶ 14-16. As we explained in
Skarada , only 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 responsibilities will be found to constitute a pers onnel
action under the Whistleblower Protection Act . Id.
¶16 The administrative judge should then make jurisdictional determinations,
specifically identifying those disclosures and personnel actions that are within the
Board’s jurisdiction. See Keefer , 92 M.S.P.R. 476 , ¶ 16 (remanding for further
adjudication whe n the administrative judge failed to specify which allegations of
protecte d disclosures and personnel actions he found were nonfrivolous and
whether the appellants exhausted their OSC remedy with r espect to those
disclosures and actions) .
8
For any alleged disclosures and personnel actions the administrative judge finds
to be wi thin the Board’s jurisdiction, she must pro vide a complete analysis on
the merits .
¶17 After establishing the Board’s jurisdiction in an IRA appeal, an appellant
bears the burden of establishing a prima facie case of whistleblower retaliation by
proving by p reponderant evidence that she made a protected disclosure that was a
contributing factor in a personnel action taken against her. 5 U.S.C. § 1221 (e)(1);
Mattil v. Department of State , 118 M.S.P.R. 662 , ¶ 11 (2012). If an appellant
makes out a prima facie case, the agency is given an opportunity to prove, by
clear an d convincing evidence, that it would have taken the same personnel action
in the absence of the protected disclosure. 5 U.S.C. § 1221 (e)(1) -(2); Mattil ,
118 M.S.P.R. 662 , ¶ 11.
¶18 In determining whether an agency has met this burden, the Board will
consider the following factors (“Carr factors”) : (1) the strength of the agency ’s
evidenc e in support of its action; (2) the existence and strength of any motive to
retaliate on the part of the agency officials who were involved in the decision;
and (3) any evidence that the agency takes similar actions against employees who
are not whistleblowers but who are otherwise similarly situated. Soto v.
Department of Veterans Affairs , 2022 MSPB 6, ¶ 11; see Carr v. Social Security
Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999).6 The Board does not view
these factors as discrete elements, each of which the a gency 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).
6 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
Whistleblower Protection Enhancement Act of 2012 , Pub. L. No. 112-199, 126 Stat .
1465, extended for 3 years in the All Circuit Review Extension Act, Pub. L.
No. 113-170, 128 Stat. 1894, and eventually made permanent in the All Circuit Review
Act, Pub. L. No. 115-195, 132 Stat. 1510, appellants may file petitions for judicial
review o f Board decisions in whistleblower reprisal cases with any circuit court of
appeals of competent jurisdiction. See 5 U.S.C. § 7703 (b)(1)(B).
9
¶19 Although the administrative judge found that t he appellant met her burden
of establishing a prima facie case of whistleblower reprisal, generally, she
improperly did so in summary fashion. ID at 10-11. The administrative judge
did not , for example, specify which disclosures were protected, delineate the
category of protected disclosure, or explain how the appellant met her burden .
Id.; see 5 U.S.C. § 2302 (b)(8) (providing that a disclosure is protected if an
individual reasonably believes that it evidences a violation of any law, rule, or
regulation, gross mismanagement, a gross waste of funds, an abuse of authority,
or a substantial and specific danger to publi c health or safety) . She also failed to
adequately explain the contributing factor element. She conclude d that the
appellant proved this element through the knowledge/timing test, at least with
respect to her removal. See ID at 10-11. However, in doing so, she found that
the deciding offic ial knew that the appellant previously had complained to her
SPS manager, generally; the administrative judge did not, for example, specify
whether the deciding official’s knowledge of complaints included knowl edge of
protected disclosures. Id.
¶20 On reman d, if the administrative judge finds jurisdiction, then she must
explain in her remand initial decision how the appellant met, or did not meet , her
burden to prove her prima facie case .
¶21 The administrative judge’s findings similarly lack specificity conce rning
the agency’s burden. ID at 11-12. For the first Carr factor, i.e., the strength of
the agency’s evidence in support of its action, the administrative judge seem ed to
rely entirely on a finding that, as to the appellant’s removal , the deciding offic ial
altogether failed to consider the connection between her absence and hostility she
reportedly faced from coworkers. ID at 12. She did so without explanation or
citation and despite evidence to the contrary, including the agency’s notes from
the appel lant’s oral reply, the appellant’s written reply, and the deciding official’s
detailed penalty analysis. ID at 9; IAF, Tab 18 at 24-28.
10
¶22 For the second Carr factor, i.e., the existence and strength of any motive to
retaliate on the part of the agency officials who were involved in the decision, the
administrative judge found that the proposing and deciding official s had no
motive to retaliate because the disclosures did no t negatively reflect on them. ID
at 12. The administrative judge should consider the motive of the agency
generally, not merely the motive of the individual managers . Wilson v
Department of Veterans Affairs , 2022 MSPB 7 , ¶ 65 (addressing the second Carr
factor to find that the appellant’s disclosures generally put higher -level
management officials in a critical light by disclosing probl ems for which they
were responsible); Smith v. Department of the Army , 2022 MSPB 4 , ¶¶ 28-29
(addressing the second Carr factor to find that the misconduct the appellant
disclosed was egregious and generated negative publicity, thereby reflecting
poorly on the agency’s general institutional interests) . Moreover, sh e did not
fully discuss other considerations, such as whether any other individual that did
have a motive to retaliate influenced their decisions . ID at 12. Nevertheless , the
alleged harassment by the appellant’s coworkers cannot shield her from the
consequences of her misconduct , and the administrative judge erred to the extent
that she inferred retaliatory motive from the agency’s failure to take t his alleged
harassment into account to mitigate the penalty of removal . ID at 11-12; see
Carr , 185 F.3d at 1324 , 1326 (declining to consider the allegedly false reports of
misconduct by an employee’s coworkers, who were subjects of her disclosures, in
weighing the motive to re taliate on the part of the official s who removed her).
¶23 For the third Carr factor, i.e., any evidence that the agency takes similar
actions against employees who are not whistleblowers but who are otherwise
similarly situated, the administrative judge recognize d that the agency had
removed other employees for excessive absences. ID at 12. However, she seems
to altogether dismiss this evidence, rather than account for any differences,
because those instances did not involve an alleged hostile work environ ment.
Id.; cf. Mattil v. Department of State , 118 M.S.P.R. 662 , 675 (2012) . To the
11
extent that the agency has not account ed for the differences in the kinds and
degrees of conduct a nd otherwise explain ed the cont ext of its comparator
evidence, it is taking a risk in failing to provide such information . The Board
has previously adopted the reasoning of the U.S. Court of Appeals for the
Federal Circuit that “ the failure to produce such evidence if it exists ‘may be at
the agency ’s peril, ’ and ‘may well cause the agency to fail to prove its case
overall. ’” Smith , 2022 MSPB 4 , ¶ 30 (quoting Whitmore , 680 F.3d at 1374 ).
¶24 On remand, if the administrative judge again finds that the appellant met
her burden of establishing a prima facie case of whistleblower reprisal, the
remand initial decision must provide complete findings regarding the agen cy’s
burden. Spithaler , 1 M.S.P.R. at 589.
ORDER
¶25 For the reasons discussed above, we remand this case to the field office for
further adjudication in accordance with this Remand Order. To the extent
necessary, the administrative judge should permit the parties to supplement the
record with additional argument, evidence, and testimony before issuing a
new decision .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MAGIN_LISA_NY_1221_15_0069_W_1_REMAND_ORDER_1982794.pdf | 2022-12-02 | null | NY-1221 | NP |
3,892 | https://www.mspb.gov/decisions/nonprecedential/CHIAPPETTA_DENNIS_CB_7521_16_0014_N_1_FINAL_ORDER_AND_ORDER_DENYING_REQUEST_FOR_A_STAY_1982835.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency ,
v.
DENNIS CHIAPPETTA, JR.,
Respondent.
DOCKET NUMBER S
CB-7521 -16-0014 -N-1
CB-7521 -16-0014 -T-1
CB-7521 -18-0011 -T-1
DATE: December 2, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christina Knott , Esquire, Kimberly D. McLeod , Esquire, Richard Johns and
Hansel Cordeiro , Esquire, Washington, D.C., for the agency .
Jeffrey L. Whiting , Esquire, Buffalo, New York, for the agency.
Peter B. Broida , Esquire, Arlington, Virginia, for the respondent.
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 distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order 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 AND ORDER DENYING RE QUEST FOR A STAY2
¶1 The respondent has filed a petition for review of the initial decision finding
good cause for his removal from the position of Chief Veterans Law Judge (VLJ).
Department of Veterans Affairs v. Chiappetta , MSPB Docket No. CB -7521 -16-
0014 -T-1. The responde nt also has filed a motion for a protective order and to
stay the implementation of his removal. Department of Veterans Affairs v.
Chiappetta , MSPB Docket No. CB -7521 -16-0014 -N-1. Finally, the agency has
filed a petition for review of a subsequent initia l decision ordering corrective
action for the respondent’s complaint of unlawful removal.3 Department of
Veterans Affairs v. Chiappetta , MSPB Docket No. CB-7521 -18-0011 -T-1. These
cases are hereby JOINED under 5 C.F.R. § 1201.36 . For the following reasons,
both petitions for review and the respondent’s motion are DENIED. Except to
MODIFY the administrative law judge’s reliance on Model Rule 2.15 in findin g
good cause in MSPB Docket No. CB-7521 -16-0014 -T-1, w e AFFIRM the initial
decision s, which are now the Board’s final decision s in the se matters . 5 C.F.R.
§ 1201.113 (b).
BACKGROUND
¶2 The respondent was a Chief VLJ for the agency. Chiappetta , MSPB Docket
No. CB -7521 -16-0014 -T-1, Complaint File (0014 CF), Tab 25 at 55. VLJs,
including Chief VLJs , are members of the Board of Veterans’ Appeals. 38 C.F. R.
2 This is a Final Order in MSPB Docket Nos. CB -7521 -16-0014 -T-1 and CB -7521 -18-
0011 -T-1 and an Order Denying Request for a Stay in MSPB Docket No. CB -7521 -16-
0014 -N-1.
3 Because of the different postures in which the joined cases came to the Board, the
Department of Veterans Affairs was the petitioner in one case and the respondent in the
other, and likewise with Mr. Chiappetta. For ease of reference, this Final Order will in
all contexts refer to the Department of Veterans Affairs as “the agency” and
Mr. Chiappetta as “the respondent.”
3
§ 20.101 .4 As such, they may be removed subject to the same requirements as
administrative law judges (ALJ) under 5 U.S.C. § 7521. 38 U.S.C.
§ 7101 A(e)(2). Under that section, a removal may be taken “ only for good cause
established and determined by the Merit Systems Protection Board. ” 5 U.S.C.
§ 7521 (a), (b)(1).
¶3 On February 1, 2016, the agency filed a complaint with the Board under
5 C.F.R. § 1201.137 (b), seeking the respondent’s removal based on two charges:
(1) conduct unbecoming a VLJ ; and ( 2) misuse of Government resources.
0014 CF, Tab 1 at 4-9. The conduct unbecoming charge was supported by nine
specifications, all related to the respondent’s participation with four other agency
employees in an email group , which they had dubbed the “For um of Hate” (FOH)
Id. at 5-9, 131. Essentially the FOH exchanged a large number of bigoted or
otherwise inappropriate emails on Government time and with G overnment
equipment. Id. at 5 -9. The misuse of G overnment resources charge was
supported by one spe cification alleging that the re spondent misused G overnm ent
resources when he used his G overnment email account to participate in the FOH.
Id. at 9.
¶4 After a hearing, on November 9, 2017, the ALJ assigned to hear the
complaint issued an initial decision fin ding good cause for the respondent’s
removal. 0014 CF, Tab 40, Initial Decision (0014 ID). The ALJ found it
undisputed that good cause existed for the agency to initiate some level of
disciplinary action. 0014 ID at 12-16. The parties did, however, dis pute the
appropriate level of discipline, and so the ALJ conducted a detailed analysis of
the penalty issue, ultimately concluding that removal was the appropriate
sanction. 0014 ID at 16 -31. The respondent has filed a timely petition for
review, disputi ng the ALJ’s penalty analysis. Department of Affairs v.
4 During the pendency of this appeal, effective February 19, 20 19, the agency
redesignated 38 C.F.R. § 19.2 to 38 C.F.R. § 20.101 . VA Claims and Appeals
Modernization, 84 Fed. Reg. 1 38-01, 177 (Jan. 18, 2019).
4
Chiappetta , MSPB Docket No. CB-7521 -16-0014 -T-1, Petition for Review File
(0014 PFR File), Tab 1. The agency has filed a response in opposition to the
petition for review, and the respondent has filed a reply to the agency’s response.
0014 PFR File, Tabs 4-5.
¶5 Meanwhile, on November 20, 2017, despite the fact that the initial decision
authorizing the respondent’s removal had not yet become final, the agency issued
the respondent a memorandum notif ying him that he would be removed from
service effective November 24, 2017. Department of Veterans Affairs v.
Chiappetta , MSPB Docket No. CB-7521 -16-0014 -N-1, Stay File , Tab 2 at 5. On
November 22, 2017, the respondent filed a motion for protective order and stay of
the removal decision. Id. at 1-3. After the agency responded, the Clerk of the
Board issued an order notifying the parties that the Board was operating with only
one member and that it therefore lacked a quorum of two members as required to
rule on the respondent’s motion. Stay File, Tab 7. The Clerk of the Board
informed the parties that a decision on the respondent’s motion could not be
issued until a quorum was restored. Id. at 2. Meanwhile, the agency removed the
respondent, effective November 24, 2017. Department of Veterans Affairs v.
Chiappetta , MSPB Docket No. CB-7521 -18-0011 -T-1, Complaint File (0011 CF),
Tab 8 at 8.
¶6 On January 5, 2018, the respondent filed a petition for writ of mandamus
with the United States Court of Appeals f or the Federal Circuit, asking the court
to order the Board to rule on his motion. 0011 CF, Tab 1 at 126 -56. Ultimately,
the court dismissed the petition in light of the parties’ stipulation that the
respondent would file a complaint for unlawful remov al, under 5 C.F.R.
§ 1201.142 , raising the same matters presented by his motions, and that the Clerk
of the Board would refer the matter to an ALJ for adjudication. Id. at 195 -202.
¶7 As stipulated, the respondent filed a complaint alleging that his
November 24, 2017 removal was unlawful on the basis that it was taken not in
accordance with the procedures of 5 U.S.C. § 7521 beca use there was not yet a
5
final decision by the Board authorizing the removal. Id. at 6-16. After further
development of the written record, the assigned ALJ issued an initial decision
granting the respondent’s request for corrective action, ordering the a gency to
restore the respondent to his position retroactively, and directing the agency to
provide him interim relief. 0011 CF, Tab 12, Initial Decision (0011 ID).
¶8 The agency has filed a petition for review of the initial decision, along with
a motion to stay interim relief. Department of Veterans Affairs v. Chiappetta ,
MSPB Docket No. CB-7521 -18-0011 -T-1, Petition for Review File (0011 PFR
File), Tabs 1 -2. The respondent opposes the petition on substantive grounds and
for failure t o provide interim relief. 0011 PFR File, Tabs 3, 5. The agency has
filed a response to the respondent’s opposition, and the respondent has filed a
reply to the agency’s response. 0011 PFR File, Tabs 6 -7.
ANALYSIS
The respondent’s petition for review is denied.
¶9 Under 5 U.S.C. § 7521 and 38 U.S.C. § 7101 A(e)(2), the agency may take
an adverse action against a VLJ only for good cause established and determined
by the Board. Here, the respondent does not dispute that good cause exists to
discipline him. Rather, “[t]he question is what, if any, penalty should be
imposed.” 0014 CF, Tab 29 at 44.
¶10 In determining the appropriate penalty in an original jurisdiction case filed
under 5 U.S.C. § 7121 , the Board is guided by the principles set forth in
Douglas v. Veterans Administration , 5 M.S.P.R. 280 (1981) .5 Social Security
Administration v. Burris , 39 M.S.P.R. 51, 64 (1988) , aff’d , 878 F.2d 1445 (Fed.
Cir. 1989 ) (Table ). In Douglas , the Board established a totality of the
circumstances approach to the issue of penalty and set forth a list of
12 nonexhaustive factors that are generally relevant to such a determination.
5 M.S.P.R. at 305 -06. The Board will consider whatever evidence of record
5 Neither party to this case contends that a different standard should apply.
6
affects the charge and penalty. Social Security Administration v. Glover ,
23 M.S.P.R. 57 , 79 (1984) .
American Bar Association Model Code of Judicial Conduct
¶11 Although he found that the issue of good cause was not in dispute, the ALJ
nevertheless found it appropriate to review the facts establishing good cause.
0014 ID at 12. In doing so, he considered the American Bar Association’s (ABA)
Model Code of Judicial Conduc t, upon which the agency also relied in
establishing good cause in its complaint . 0014 ID at 11, 15 ; 0014 CF, Tab 1
at 11-13; see Social Security Administration v. Long , 113 M.S.P.R. 190 , ¶ 41
(2010) (finding the ABA Model Code of Judicial Conduct to be an appropriate
guide for evaluating the conduct of ALJs ), aff’d , 635 F.3d 526 (Fed. Cir. 2011) .
He found that the respondent’s actions and inactions violated ABA Model
Rule 1.2, which provides that “[a] judge shall act at all times in a manner that
promotes publi c confidence in the independence, integrity, and impartiality of the
judiciary, and shall avoid impropriety and the appearance of impropriety. ”
0014 ID at 12, 15. He further found that the respondent’s failure to report
offensive emails sent by other FOH members violated Model Rule 2.15, which
sets forth requirements to report certain misconduct by other judges and
attorneys. Id.
¶12 On review, the respondent objects to the ALJ’s use of Model Rule 2.15 on
the basis that the agency did not rely on it in the complaint. 0014 PFR File,
Tab 1 at 15. We agree. Our review of the record reveals no mention of Model
Rule 2.15 until the issuance of the initial decision. Therefore, in arriving at our
decision, we have not considered whether the respondent violated th is rule.
¶13 Although the respondent’s arguments concerning the Model Code pertain
chiefly to Model Rule 2.15, he also appears to argue that the ALJ treated his
violation of Model Rule 1.2 as an aggravating factor in the penalty analysis, and
that the ALJ erred in doing so. 0014 PFR File, Tab 1 at 14 -16. We are not
7
convinced by this argument. First, the respondent does not explain why he
believes that his violation of Model Rule 1.2 should not have figured into the
penalty determination. See Weaver v. Depar tment of the Navy , 2 M.S.P.R. 129 ,
133-34 (1980). Second, the ALJ does not appear to have considered the violation
of Model Rule 1.2 as an a ggravating factor, although he did mention it in
assessing the nature and seriousness of the offense. 0014 ID at 17. The ALJ
considered this matter primarily in connection with his good cause determination,
and we find that it was completely appropriate for him to d o so. 0014 ID
at 11-12, 15; see Long v. Social Security Administration , 635 F.3d 526 , 535 (Fed.
Cir. 2011). Nevertheless, we find that the respo ndent’s violation of Model
Rule 1.2 is far less instructive on the issue of penalty than it is on good cause
because the Model Rule is written so broadly that nearly any sort of actionable
misconduct could fall within its purview. Although t his fits well with the good
cause standard, which is itself quite broad, see Long , 635 F.3d at 535 -36, the
mere fact that the respondent violated Model Rule 1.2 tells us almost nothing
about the particular circumstances of his case, cf. McGowan v. Departme nt of the
Air Force , 28 M.S.P.R. 314 , 317 (1985) (explaining that the Board tailors its
penalty analysis to the unique circumstances of e ach case). We therefore find
that the respondent’s violation of Rule 1.2 of the ABA Model Code of Judicial
Condu ct carries little weight in the penalty analysis.
Nature and Seriousness of the Offense and the Nature of the Respondent’s
Employment
¶14 In making its penalty determination, the Board will consider first and
foremost the nature and seriousness of the offense, and its relation to the
employee ’s duties, position, and responsibilities, including whether the offense
was intentional or technical or inadv ertent, or was committed maliciously or for
gain, or was frequently repeated . Social Security Administration v. Steverson ,
111 M.S.P.R. 649 , ¶ 18 (2009) , aff’d , 383 F. App’x 939 (Fed. Cir. 2010) ;
Douglas , 5 M.S.P.R. at 305. The Board has traditionally placed primary
8
importance on this penalty factor. Vaughn v . U.S. Postal Service , 109 M.S.P.R.
469, ¶ 15 (2008) , aff’d , 315 F. App’x 305 (Fed. Cir. 2009) .
¶15 In this case, the respondent attempts to downplay the nature a nd seriousness
of his misconduct. He argues that out of the 103 emails at issue in the compl aint,
he sent only 9 of them and, of these , only 1 contained objectionable material –an
email referencing the Ku Klux Klan, stating that a particular youth baseball team
should be called “The Maryland White Sheets.”6 0014 PFR File, Tab 1 at 5 -7;
0014 CF, Tab 1 at 6 -9. The remainder of the offensive emails were sent by the
other FOH members, and the respondent maintains that his replies to these were
either innocuou s or nonresponsive. 0014 PFR File, Tab 1 at 4 -8. The respondent
further argues that he was never a supervisor or manager of the other FOH
members, but he did counsel them numerous times to stop sending objectionable
emails. Id. at 4, 8 -13, 21 -22.
¶16 We agree that the respondent was not a partic ularly active member of the
FOH and that he sent one offensive and racist email . However, the complaint
pertains chiefly to the respondent’s failure to take appropriate action to put a stop
to his colleagues’ c onduct. 0014 CF, Tab 1 at 6 -9. Although the respondent may
not have been in any of the other FOH members’ direct chain of command, he
was the highest ranking member of the FOH (the others being staff attorneys and
a VLJ) and his tacit participation in th e group fostered an environment that
6 This email exchange read as follows after one FOH member emailed the others a
picture of an all Caucasian children’s baseball team:
Attorney CH: Fir st baseball practice. Not a Charo [Hispanic], Adrian
[African -American], or BD [Asian] in the bunch. Yes, Americana.
VLJ JM: Nice but where are the white sheets? Gotta start them when
they are young.
Respondent: Come on James, that is the name of the kids team: “The
Maryland White Sheets.”
VLJ JM: Of course my bad, [bonfire] after every victory.
0014 CF, Tab 24, VA Ex. 1 at 261; Hearing Transcript, Volume 2 at 228 -29.
9
allowed it to persist. 0014 CF, Tab 1 at 138. Furthermore, we agree with the
ALJ that the respondent’s counseling of the other FOH members appears to have
been more about not getting caught than about supporting a cul ture of respect and
propriety. 0014 ID at 19; 0014 CF, Tab 25 at 33 -37. In fact, the respondent
advocated for carrying out FOH activit ies over private email accounts —a
suggestion that the other FOH members apparently declined to adopt. 0014 CF,
Tab 25 a t 35. In addition , at least some of the respondent’s emails were
calculated to urge the others on: “OUTSTANDING” in response to a series of
racist or otherwise offensive jokes, and “Ohhh. How’s that funny or hateful?
This ain ’t the forum of yawn .” 0014 CF, Tab 1 at 418, Tab 25 at 10 -13.
¶17 Considering the evidence as a whole, we find that the respondent’s
participation in the FOH exhibited a marked lack of judg ment over a significant
period of time. He sent inconsistent messages to the group by occasiona lly
counseling them against their offensive emails while at the same time doing
nothing effective to stop them, and sometimes expressing approbation. We
acknowledge that the respondent had misgivings about the FOH email traffic and
that doing something co ncrete to stop it would risk him alienating some friends
and colleagues. 0014 PFR File, Tab 1 at 9, 11-12. However, this is exactly the
kind of situation that agency leadership is expected to face with resolve and
fortitude. The respondent ’s position, Chief VLJ , is one of great importance and
prominence; a Chief VLJ not only issues final agency decision s on important
veterans’ benefit cases, he manages a staff consisting of dozens of attorneys and
VLJs, and he is appointed to his position by the Presiden t of the United States.
Hearing Transcript (Tr.) , Volume ( Vol. ) 1 at 81 -92 (testimony of the Director of
Management , Planning , and Analysis ). The respondent had dozens of
opportunities over the course of several years to confront this situation properly,
yet he failed to do so. For these reasons, we agree with the ALJ that the
respondent’s offense was serious as it pertains to his position. 00 14 ID at 20 -21.
10
Respondent’s Past Disciplinary and Work Record
¶18 In his initial decision, the ALJ acknowledged the respondent’s long and
unblemished work history with the agency. 0014 ID at 21. On petition for
review, the respondent emphasizes this work hi story and argues that it weighs
strongly in favor of mitigation. 0014 PFR File, Tab 1 at 17 -20. We agree.
Instant misconduct aside, the respondent has been an exemplary agency employee
for 20 years, well -liked by his colleagues, with a spotless discipli nary record and
consistently outstanding work performance. 0014 CF, Tab 24 at 17 -46, Tab 25
at 55-92; Tr., Vol. 1 at 27 (testimony of the Deputy Secretary), Vol. 2 at 21
(testimony of the respondent); see Gill v. Department of Defense , 92 M.S.P.R. 23 ,
¶ 27 (2002) ( considering 20 years of service and good performance as a
mitigating factor ); Douglas , 5 M.S.P.R. at 305. The nature of the respondent’s
history with the agency is not in dispute, and we find that it is an important factor
to consider in the penalty analysis.
The Respondent’s Ability to Perform and his Supervisors’ Confidence in
Him
¶19 In his initial decision, the ALJ found that , although the charges do not bear
on the respondent’s technical ability to perform his job duties, his supervisors
have lost trust and confidence in him. 0014 ID at 22 -23. In particular, he noted
the testimony of the respondent’s second -line supervisor, who stated that even
one inappropriate email from someone in the respondent’s position would be
enough for him to lose all credibility. 0014 ID at 22; Tr., Vol. 1 at 123 -24
(testimony of the second -line supervisor). He also noted the testimony of the
respondent’s first-line supervisor, who stated that the respondent’s actions have
completely broken his trust and that he is concerned about the respondent’s
ability to handle matters appropriately and maintain good relationships with his
coworkers. 0014 ID at 22; Tr., Vol. 1 at 198, 215 (testimony of the first -line
supervisor).
11
¶20 On petition for review, the respondent points out that, after the events
surrounding the FOH came to light, the agency had him work on a detail
assignment to compile stock language f or VLJs to use in addressing common
veterans’ benefit issues. 0014 PFR File, Tab 1 at 24 -25. He argues that the
assignment has gone well and that it demonstrates his continued ability to
perform at an acceptable level. Id. The respondent also argues th at there is no
basis for his first -line supervisor’s stated concern about his relationship with
other employees; no employees ever raised any concerns to him, but to the
contrary they support the respondent’s continued employment. Id. at 25.
¶21 We have considered these arguments, but we find that they do not warrant a
lesser penalty under all the circumstances . Regarding the detail assignment,
although it appears to be undisputed that the respondent’s performance in it was
generally successful, this evidence goes chiefly to his technical skills to perform
his job, which are not in doubt . 0014 ID at 22. However, the agency proved that,
despite the responden t’s technical skills and ability, his misconduct raises serious
questions about his ability to handle matters appropriately as a VLJ and his
relationships with other employees. Regarding the supervisor’s concerns about
the respondent’s relationships with his coworkers, it is true that these are not
grounded in any coworker complaints. Tr., Vol . 1 at 221 (testimony of the
first-line supervisor). However, we still find that these concerns are reasonable,
especially considering that the very misconduct at i ssue grew out of a
dysfunctional relationship between the respondent and several o f his coworkers .
Beyond that, we find that the supervisors’ loss of trust in the respondent is
reasonable in light of the marked and continuous lack of judgment that he
exhi bited for the full duration of his participation in the FOH. Loss of trust and
confidence is a significant aggravating factor in a penalty determination.
Talavera v. Agency for International Development , 104 M.S.P.R. 445 , ¶ 12
(2007) .
12
Table of Penalties
¶22 In his initial decision, the ALJ found that removal was consistent with the
agency’s table of penalties, which provides a penalty range of reprimand to
removal for a first offense of using disrespectful, insulting, abusive, insolent, or
obscene language to or about supervisors or other employees. 0014 ID at 24 -25;
0014 CF, Tab 1 at 149. On petition for review, the respondent argue s that the
table of penalties is “of no use” because a range of reprimand to removal applies
for a first offense in any applicable category of misconduct. 0014 PFR File,
Tab 1 at 29. We agree with the respondent that the table of penalties is of limited
use to the Board in arriving at a penalty determination, but we also agree with the
ALJ’s finding that it did not foreclose removal . 0014 ID at 25.
Consistency of the Penalty
¶23 The respondent proffered one of the other FOH members as a comparator
for penalt y purposes, arguing that this individual, like him, sent a minimal
number of offensive em ails and was given a 2 -week suspension. 0014 CF, Tab 29
at 49, Tab 30. The ALJ found that this employee was a staff attorney and
therefore not comparable to the respondent, who is a Chief VLJ. 0014 ID
at 23-24. The respondent does not challenge this finding on review, and we agree
with the ALJ’s analysis of this issue. Moreover, even if the proffered comparator
were similarly situated to the respondent, consist ency of the penalty is only one
factor among many for the Board to consider, and we find that it would not be of
sufficient weight under the facts of this case to warrant mitigation. Singh v. U.S.
Postal Service , 2022 MSPB 15, ¶ 18.
Notoriety of the Offense
¶24 In his initial decision, the ALJ found that the facts of the respondent’s case
were public knowledge and that the story had been cov ered by several news
outlets. 0 014 ID at 25 -26; 0014 CF, Tab 24 at 476 -513. He further found that
13
there was the potential for additional adverse publicity as the respondent’s appeal
progressed. 0014 ID at 26. On petition for review, the respondent argu es that a t
least some of the publicity —that from the Wall Street Journal —was of the
agency’s own making and that the agency did not rely on publicity or notoriety in
bringing its compla int. 0014 PFR File, Tab 1 at 29 .
¶25 We disagree. First, we find that t he agency’s actions did not occasion the
Wall Street Journal article. As the ALJ correctly found, the agency issued a press
release only after learning that the paper was about to run the story and receiving
a request for comment about it. 0014 ID at 24; 0014 CF, Tab 24 at 481, 508 -10;
Tr., Vol. 1 at 35 (testimony of the Deputy Secretary). We also find that the
agency did, in fact, rely on the notoriety of the offense in bringing the complaint.
The Douglas factor checklist attached to the complaint indicates that the notoriety
of the offense and its effect on the reputation of the agency would be considered
an aggravating factor. 0014 CF, Tab 1 at 19; cf. Alvarado v. Department of the
Air Force , 97 M.S.P.R. 389 , ¶ 15 (2004) (stating that t he notice requirement is
satisfied when the proposal and any attachments to it, taken together, provide the
employee with specific notice of the charges against him so that he can make a n
informed and meaningful reply ). We find that the significant publicity that this
case has garnered is an aggravating factor. See Bilger v. Department o f Justice ,
33 M.S.P.R. 602 , 611 (1987) , aff’d , 847 F.2d 842 (Fed. Cir. 1988) (Table) .
Clarity with which the Respondent Was on Notice
¶26 On petition for review , the respondent argues that he was not clearly on
notice of any obligation to report the inappropriate FOH email s because the
agency has no policy on the matter. 0014 PFR File, Tab 1 at 20. We agree with
the respondent that the agency does not appear to have any written policy
covering this specific situation, but we also agree with the ALJ that the
respondent knew all along that the FOH email traffic was improper. 0014 ID
at 26-28. The respondent not only completed numerous training s touching on
14
these issues, 0014 CF, Tab 24 at 189-94; Tr., Vol. 2 at 269 -77 (testimony of the
respondent), we find that no specific instruction should have been required for the
respondent to understand how to handle this matter appropriately . This is no t a
situation wherein the respondent ran afoul of an idio syncratic and non obvious
agency rule. Cf. Gunn v. U.S. Postal Service , 13 M.S.P.R. 576 , 578-79 (1982) .
Potential for Rehabilitation
¶27 In his initial decision, the ALJ briefly acknowledged that the respondent
was unlikely to commit a similar offense in the future. 0014 ID at 28 -29. By
contrast, the respondent’s petition for review places great e mphasis on his
potential for rehabilitation. PFR File, Tab 1 at 10, 16 -17, 21 -22, 28. The
respondent’s rehabilitative potential is not the only factor for the Board to
consider in arriving at its penalty determination. Social Security Administration
v. Davis , 19 M.S.P.R. 279 , 283 , aff’d , 758 F.2d 661 (Fed. Cir. 1984) . It is,
however, an important factor, and we find that rehabilitative potential in this case
is present. During agency proceedings, the respondent expressed remorse and
acknowledged that he should h ave handled things differently. Tr., Vol . 1 at 32
(testimony of the Deputy Secretary); see Williams v. Government Printing Office ,
7 M.S.P.R. 183, 185 (1981) (finding that the appellant ’s numerous apologies,
among other things, augured well for his rehabilitative potential). Furthermore,
the Deputy Secretary opined that the respondent would be very unlikely to repeat
the same misconduct in the future. 0014 ID at 28; Tr., Vol . 1 at 33; see Wentz v.
U.S. Postal Service , 91 M.S.P.R. 176 , ¶ 24 (2002) . Nevertheless, we find that the
evidence of rehabilitative potential is tempered by the respondent’s continued
efforts to deflect the blame to other FOH members and his apparent failure to
recognize that his own participation, however tacit, fostered the conditions for the
group’s ex istence. Tr., Vol . 2 at 101 -57; see Betz v. General Services
Administration , 55 M.S.P.R. 424 , 428, 431 (1992) .
15
Lesser Alternative Sanct ions
¶28 In his initial decision, the ALJ found that, if the respondent were to return
work at the agency, he probably would amend his email behavior, and that a
lengthy suspension would be sufficient to deter such misconduct by the
respondent and others. 0014 ID at 30. He further found, however, that the
penalty of removal would be even more effective in deterring other s from
committing similar misconduct. Id. On petition for review, the respondent
argues that the ALJ is attem pting to make an example of him and that the Board
has traditionally frowned upon exemplary punis hment. 0014 PFR File, Tab 1
at 25-27. He argue s that, in light of the nature of his misconduct, his
rehabilitative potential, and the agency’s policy of progressiv e discipline,
demotion to a non supervisory position would be more appropriate. Id. at 21 -22,
27-29.
¶29 We agree with the respondent that exem plary punishment is generally
contrary to the principles set forth in Douglas , which call for the Board to focus
on the individual circumstances and offenses of the employee being disciplined.
Perez v. U.S. Postal Service , 48 M.S.P.R. 354 , 357 -58 (1991) . Nevertheless, it is
appropriate under Douglas to consider the deterrent effect that a lesser penalty
would have on others. Harper v. Depart ment of the Air Force , 61 M.S.P.R. 446,
448 (1994 ); Douglas , 5 M.S.P.R. at 305 -06. This means simply that deterrence is
one of the factors that may be considered in selecting a penalty but that the Board
may not decide to make an example of an individual irrespective of the other
Douglas factors. See Harper , 61 M.S.P.R. at 448. Reviewing the initial decision
as a whole, we find that the ALJ considered all of the appropriate penalty factors
in arriving at his decision. 0014 ID at 16 -32. In any event, even excluding
deterrence as a factor entirely, upon consideration of all the relevant Douglas
factors and th e particular circumstances , we find that removal is the appropriate
penalty for the respondent’s misconduct.
16
¶30 The respondent’s misconduct is severe and, as explained in the initial
decision, raises serious questions about his capability to render fair, impa rtial,
and unbiased decisions as an administrative adjudicator. 0014 ID at 20, 31.
Given the bigoted overtones of the FOH activity, the respondent’s unwillingness
to stop it despite his position of prominence, the negative publicity that this case
has alr eady garnered, and the deleterious effect that the respondent’s retention
would have on the agency ’s reputation if he continued on in any sort of
adjudicatory role, we find that the agency has shown good cause for his removal.
The respondent’s motion to st ay his removal and for a protective order is denied
as moot.
¶31 As set forth above, the agency removed the respondent during the pendency
of his petition for review of the initial decision that found good cause for his
removal, and the respondent filed a motion to stay the removal and for a
protective order to prevent the agency from removing him absent final
authorization from the Board . Supra ¶ 5; see Stay File, Tab 1. Such a motion is
not contemplated by the Bo ard’s regulations. See 5 C.F.R. §§ 1201.114 (a),
.140(a)(2). The proper method for seeking relief under these circumstances
would be to file a complaint with the Board under 5 C.F.R. § 1201.142 . As
explained below, the respondent did file such a complaint, and pursuant to that
complaint he is receiving all of the relief that he was seeking with his motion.
Accordingl y, the motion to stay and for a protective order is denied as moot.
The agency’s petition for review is denied.
¶32 As set forth above, the respondent filed a complaint against the agency for
removing him from his position on November 24, 2017 without authoriz ation.
Supra ¶ 7; 0011 CF, Tab 1, Tab 8 at 8. The ALJ granted corrective action and
ordered the agency to restore the respondent to his position retroactively and to
grant him interim relief in the event that either party petitioned for review.
0011 ID. The agency has not provided the respondent with interim relief, but it
has filed a petition for review. 0011 PFR File, Tab 2.
17
Agency’s Motion to Stay Interim R elief
¶33 Prior to filing its petition for review, the agency filed a motion to stay
interim reli ef. 0011 PFR File, Tab 1. Although the propriety of interim relief
may be challenged, neither the applicable statute nor the Board ’s regulations
contemplate that the Board may stay interi m relief or entertain an agency’ s
motion for such a stay . Erickson v. U.S. Postal Service , 120 M.S.P.R. 468 , ¶ 10
(2013). The agency’s motion is denied . Id.
Respondent’s Motion to D ismiss the Petition for R eview
¶34 Whe n, as here, the respondent was the prevailing party in the initial
decision and interim relief was ordered, a petition for review filed by the agency
must be accompanied by a certification that the agency has complied with the
interim relief order, either b y providing interim relief or by making a
determination that returning the respondent to the place of employment would
cause undue disruption to the work environment. 5 C.F.R. § 1201.116 (a). Whe n
an agency fails to submit the required certification with its petition, the petition
may be dismissed with prejudice. See 5 C.F.R. § 1201.116 (e).
¶35 In this case, it is undispu ted that the agency has not complied with the
interim relief order, and the respondent has moved to dismiss the petition for
review on that basis. 0011 PFR File, Tab 2 at 15, Tab 3 at 22 -23. The agency
does, however, challenge the propriety of interim r elief. 0011 PFR File, Tab 2
at 8-14. Although the Board could dismiss the petition due to the agency’s
noncompliance with the interim relief order, we exercise our discretion not to do
so both because the agency’s challenge to interim relief is intertwine d with its
challenge to the merits of the initial decision and because the respondent will not
be prejudiced if we consider the petition on the merits; as explained below, the
petition does not meet the criteria for review under 5 C.F.R. § 1201.115 . See
Thome v. Department of Homeland Security , 122 M.S.P.R. 315 , ¶ 16 (2015)
(explaining that the Board ’s authority to dismiss an agency petition under
18
5 C.F.R. § 1201.116 (e) is discretionary, not mandatory) . The respondent’s
motion to dismiss is denie d.
The A gency’s Petition for R eview
¶36 In his initial decision, the ALJ found that the respondent’s November 24,
2017 removal was an action covered under 5 U.S.C. § 7521 , for which the agency
was requ ired to obtain prior authorization from the Board. 0011 ID at 13. He
further found that the agency took the removal action without receiving prior
authorization from the Board, i.e., a final Board decision authorizing the removal.
0011 ID at 13 -19. He therefore reversed the removal and ordered the agency to
retroactively restore the respondent to his position. 0011 ID at 19. On petition
for review, the agency argues that its removal action was authorized under
5 U.S.C. § 7521 and that the ALJ erred in finding that the removal occurred prior
to authorization under that section. 0011 PFR File, Tab 2 .
¶37 The agency makes several arguments on review, but the essence of all of
them is that the ALJ’s initial decision finding good cause for removal constituted
sufficient authorization for it to remove the respondent. Id. at 6-14. We disagree.
Section 7521 of Title 5 of the United States Code provides that the agency may
remove a VLJ “ only for good ca use established and determined by the Merit
Systems Protection Board on the record after opportunity for hearing before the
Board. ” No such determination had been made at the time the agency effected the
respondent’s removal. The ALJ’s initial decision may become the final decision
of the Board if neither party petitions for review within 35 days or if a petition
for review is timely filed and the Board denies the petition. 5 C.F.R.
§§ 1201.113 , .140(a)(2). Alternatively, the Board may reach a final decision by
granting a petition for review or reopening or dismissing the case. 5 C.F.R.
§ 1201.113 (c). Unless and until one of these conditions is met, the Board has not
issued a final decision, and it has therefore not made a determination of good
cause. Here, the agency effected the respondent’s removal only 20 days after the
19
issuance of t he initial decision, before it could have become final, and the
respondent subsequently filed a timely petition for review. Thus, the agency
lacked the requisite final Board decision to take an action pursuant to
section 7521 procedures.
¶38 As for some of th e agency’s more specific arguments, it points out the
Board’s regulations previously provided that an ALJ would issue a
“recommended” initial decision, but the regulations have since been amended to
remove the word “recommended.” 0011 PFR File, Tab 2 at 6 -7. Compare
5 C.F.R. § 1201.135 (a) (1997) , with 5 C.F.R. § 1201. 140(a)(2) (1998). The effect
of this amendment was to allow initial decisions in section 7521 cases to become
final without further action from the Board. In other words, section 7521 cases
were made subject to the nor mal petition for review process applicable to cases
within the Board’s appellate jurisdiction. See Social Security Administration v.
Carr , 78 M.S.P.R. 313 , 318 n.1 (1998) , aff’d , 185 F.3d 1318 (Fed. Cir. 1999 ).
Compare 5 C.F.R. §§ 1201.135 -.136 (1997), with 5 C.F.R. § 1201.140 (a)(2)
(1998). Nothing about that process suggests that initial decisions become the
decisions of the Board before the conditions of 5 C.F.R. § 1201.113 are satisfied.
¶39 The agency also argues that the respondent’s complaint is a collateral attack
on the initial decision finding good cause for his removal. 0011 PFR File, Tab 1
at 8. This is simply not true. The respondent is not contesting the ALJ’s
prev ious good cause determination in this complaint; he is merely contesting the
agency’s decision to remove him before that initial decision became final .
Furthermore, contrary to the agency’s assertion, the controlling issues in the
respondent’s complaint a re not determined by the outcome of the agency’s
original complaint, as should be evident from reading the respective initial
decisions. 00 11 PFR File, Tab 2 at 8.
¶40 The agency further argues that, by the logic of the initial decision, “the
filing of a pet ition for review could act as an automatic stay for any decisions or
orders made by [Merit Systems Protection Board] ALJs - - an untended [sic]
20
consequence.” 0011 PFR File, Tab 2 at 13. The agency offers no support for its
assertion that this consequence is unintended. In deed , this consequence is
intended, and it is explicitly recognized in the Board’s enforcement regulations,
which provide that the Board will only enforce an order after it becomes final.
5 C.F.R. § 1201.182 (b); see Dean v. Department of the Army , 57 M.S.P.R. 296 ,
300 (1993) .
¶41 Finally, the agency argues that, as the prevailing party in the initial
decision , it should be entitled to the relief provided in the initial decision
effective the date it is issued. 0011 PFR File, Tab 2 at 13 -14. Although there
might be policy reasons to support the agen cy’s argument, the agency ’s policy
preferences do not permit us to ignore the plain language of the statute , which as
explained above, requires the agency to await a good cause determination “by the
Board ” before removing the respondent. 5 U.S.C. § 7521 ; see Garza v. Office of
Personnel Management , 83 M.S.P.R. 336 , ¶ 17 (1999) (citing Commissioner v.
Lundy , 516 U.S. 235 , 25 1-52 (1996)) , aff’d , 250 F.3d 763 (Fed. Cir . 2000)
(Table). The agency is essentially arguing that the favorable initial decision
entitled it to interim relief, but Congress explicitly limited the availability of
interim relief to employees and applicants for emplo yment.7 5 U.S.C.
§ 7701 (b)(2).
7 Given the respondent’s misconduct in this case, we appreciate the agency’s interes t in
removing him from its employment rolls as soon as practicable. But the Federal
Government cannot operate outside the law. The respondent may ultimately be entitled
to a significant amount of back pay and benefits in this case, but this is due solely to the
strictures of the operative statute and the circumstances of a lack of Board quorum for a
prolonged period of time. Ordinary adverse actions taken under 5 U.S.C. chapter 75,
subchapter II, are effective immediately regardless of any subsequent Boa rd appeal, but
adverse actions against ALJs and VLJs are governed by 5 U.S.C. chapter 75,
subchapter III, which requires final Board approval before they can become effective.
Any award of back pay and benefits may be attributed to this Board’s commitment to
the Merit Systems and to the rule of law —not to any sympathy with the respondent’s
conduct.
21
ORDER
CB-7521 -18-0011 -T-1
¶42 We ORDER the agency to cancel the respondent’s November 24, 2017
removal and to restore him to duty retroactive to that date . 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.
¶43 We also ORDER the agency to pay the respondent 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 respondent to cooperate in good faith i n 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 respondent the
undisputed amount no later than 60 calendar days after the date of this decision.
¶44 We further ORDER the agency to tell the respondent promptly in writing
when it believes it has fully ca rried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The respondent , if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201. 181(b).
¶45 No later than 30 days after the agency tells the respondent that it has fully
carried out the Board’s Order, the respondent may file a petition for enforcement
with the Office of the Clerk of the Board, if the respondent believes that the
agency did not fully carry out the Board’s Order. The petition should contain
specific reasons why the respondent believes that the agency has not fully carried
out the Board ’s Order, and should include the dates and results of any
comm unications with the agency. 5 C.F.R. § 1201.182 (b).
¶46 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defens e Finance and
Accounting Service (DFAS), two lists of the information and documentation
22
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.
CB-7521 -16-0014 -T-1
¶47 The Board authorizes the agency to remove the respondent for good cause
shown, pursuant to 5 U.S.C. § 7521 . Such removal shall be effective on or after
the date of this Final Order.
NOTICE TO THE RESPONDENT REGARDING
YOUR RIGHT TO REQUES T
ATT ORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). T he
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 CAL ENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the Clerk of the
Board.
NOTICE OF APPEAL RIG HTS FOR
MSPB DOCKET NOS. CB -7521 -16-0014 -T-1 AND CB -7521 -18-0011 -T-18
You may obtain review of this final deci sion. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
23
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal 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
24
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposi tion of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, re ligion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Cont act information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
25
and your representative receives this decision before you do, then 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
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of compete nt jurisdiction.9 The court of appeals must receive your
9 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.
26
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 judic ial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Pract ice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono rep resentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
27
Contact information for th e courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missin g documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non -wage payments (such as d amages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remed y Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job under taken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuit y payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leav e
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decisi on.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD -343
1. Provide pay entitlement to incl ude Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings document ation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of t he period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1 -7 above.
The following information must be included on AD -343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a -g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non -taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504 -255-4630. | CHIAPPETTA_DENNIS_CB_7521_16_0014_N_1_FINAL_ORDER_AND_ORDER_DENYING_REQUEST_FOR_A_STAY_1982835.pdf | 2022-12-02 | null | S | NP |
3,893 | https://www.mspb.gov/decisions/nonprecedential/HEARN_PETER_C_DC_0752_15_0652_I_1_FINAL_ORDER__1982532.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PETER C. HEARN,
Appellant,
v.
NUCLEAR REGULATORY
COMMISSION,
Agency.
DOCKET NUMBER
DC-0752 -15-0652 -I-1
DATE: December 1, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael L. Spekter , Esquire, Washington, D.C., for the appellant.
Nina Bafundo Crimm and Ruth Kowarski Cooke , 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 his 20 -day suspension . On petition for review, the appellant challenges
the administrative judge’s credibility findings and determination that the agency
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
proved its charges, asserts that the administrative judge improperly denied a
requested witness, claims that the agency did not prove nexus, and contends that
he proved that his whistleblower disclosures were a contributing factor in his
suspension . Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or th e 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 resultin g error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review . Except as expressly MODIFIED to
supplement the administrative judge’s findings on the contributing factor element
of the appellant’s claim of reprisal for whistleblowing, we AFFIRM the initial
decision .
¶2 The administrative judge found that the appellant did not prove by
preponderant evidence that his disclosures were a contributing factor in his
suspension because he did not establish , under the knowledge/timing test, that the
proposing and deciding of ficials knew of his disclosures . Initial Appeal File
(IAF), Tab 46, Initial Decision (ID) at 30-31; see 5 U.S.C. § 1221 (e)(1) . The
appellant has shown no error in these findings. To the extent that the appellant
claims that th ose officials had constructive knowledge of the disclosure, he must
show that those with actual knowledge of his disclosure influenced the officials
responsible for taking the action. Nasuti v. Department of State , 120 M.S.P.R.
588, ¶ 7 (2014) . The appellant has not alleged, much less proven, that the agency
3
officials to whom he made his disclosures, or who were otherwise aware of them,
influenced the management officials involved in the underlying suspension
action. For example, he has not alleged that those aware of his disclosures
directed the proposing an d deciding officials to take the suspension action against
the appellant or that they were involved in the decision -making process in any
way. IAF, Tab 23 at 8. Rather, his allegations are simply that the proposing and
deciding officials had to have had actual knowledge of his disclosures.
Id.; Hearing Transcript (HT) (Oct. 8, 2015) at 735-44 (testimony of the
appellant). Accordingly, the appellant also has failed to establish constructive
knowledge and , therefore, has failed to meet the knowledge/timin g test to
demonstrate contributing factor.
¶3 Under Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 15 (2012) , if
an appellant fails to satisfy the knowledge/timing test, the Board must consider
other evidence, such as evidence pertaining to the strength or weakness of the
agency’s reasons for taking the personnel action, whether the whistleblowing was
personally directed at the p roposing or deciding official, and whether those
individuals had a desire or motive to retaliate against the appellant. Here, based
on the reasoning set forth in the initial decision , with which we agree, we find
that the agency’s evidence in support of i ts action was strong. ID at 2-20.
Further, the appellant has not shown that his disclosures were directed at the
proposing or deciding official, see IAF, Tab 24 at 4 -45, and that th ose officials
otherwise had a desire or motive to retaliate against him, see HT (Oct. 8, 2015)
at 444-46, 460 -61, 466 -67 (testimony of the proposing official) ; HT (Oct. 8,
2015) at 500-05, 508 -10, 549 -59 (testimony of the deciding official ). In sum, we
find that the appellant has not shown by preponderant evidence that other
evidence supports a finding in this case that his disclosures were a contributing
factor in his suspension. Based on the foregoing, we affirm the initial decision as
modified herein .
4
NOTICE OF APPEAL RIG HTS2
The initial decision, as supplemented by this F inal Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how c ourts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questio ns
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
5
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
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
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
6
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed 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
7
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D) .
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), ( C), or (D),” then you may file a 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 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.
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 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 | HEARN_PETER_C_DC_0752_15_0652_I_1_FINAL_ORDER__1982532.pdf | 2022-12-01 | null | DC-0752 | NP |
3,894 | https://www.mspb.gov/decisions/nonprecedential/GOELLNER_DETLEF_SF_0752_16_0757_I_1_FINAL_ORDER_1981390.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DETLEF GOELLNER,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
SF-0752 -16-0757 -I-1
DATE: November 29, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Detlef Goellner , Bellingham, Washington, pro se.
Lawrence J. Lucarelli , 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 appeal as untimely filed without good cause shown for the delay .
Generally, we grant petitions such as this one only in the following
circumstances: the initial de cision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either th e 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, desp ite 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
considerin g 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 f inal decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The agency proposed placing the appellant , a GS -13 Customs and Border
Protection (CBP) Supervisory Officer , on an indefinite suspens ion because the
State of Washington charged him with three crimes for which a sentence of
imprisonment may be imposed : a single count of Reckless Burning in the First
Degree, a class C felony ; and two counts of Reckless En dangerment, a gross
misdemeanor . Initial Appeal File (IAF), Tab 1 at 4 -6, 12 -13. The appellant
responded to the agency’s proposal letter. Id. at 32 -33. The deciding official
sustained the charges and found that the penalty was appropriate based on the
seriousness of the crimes and t he standard of conduct expected from a supervisory
officer like the appellant. Id. at 7.
¶3 The suspension became effective upon the appellant’s August 1, 2016
signed receipt of the agency’s decisio n letter , which provided that the suspension
would continu e until: (1) the resolution of the criminal charges; (2) the
completion of any agency investigation concerning the factual situation that
formed the basis of the criminal charges; or (3) the notice period of any adverse
3
action proposed based on t he factua l situation that resulted from or form ed the
basis of the criminal charges. Id. at 7-10. The letter also informed the appellant:
You have the right to appeal this action to the Merit Systems
Protection Board (MSPB) in two instances. First, you may app eal
my decision to indefinitely suspend you any time after the effective
date of this action but not later than thirty (30) calendar days after
your receipt of this letter. If your appeal is late, it may b e dismissed
as untimely. Second, you also have the right to appeal to the MSPB
your continuation in an inde finite suspension duty status af ter the
conclusion of the criminal proceedings and any administrative
actions which CB P may take against you if you believe the
continuation of the suspension becom es unreasonable. Such an
appeal should be filed within thirty (30) calendar days of the date
you think the indefinite suspension has become unreasonable.
Id. at 8.
¶4 The appellant filed this appeal of his indefinite suspension on September 6,
2016. IAF, Tab 1. The administrative judge issued an order giving the appellant
notice of his burden to demonstrate that his appeal was timely filed or that good
cause existed for the delay , and she set a date for the close of the record on the
timeliness issue . IA F, Tab 3. The appellant’s only response addressed the merits
of the agency’s action but not the timeliness of his appeal. IAF, Tab 6. Because
she found that the appellant failed to establish that he timely filed his appeal or
that good cause existed for the delay, the administrative judge issued an initial
decision that dismissed the appeal as untimely filed. IAF, Tab 10.
¶5 In his petition for review, the appellant asserts that he responded in a timely
fashion to the agency’ s proposal letter and that he filed his appeal late because
the decision letter “stated 30 days or 30 days from when I believe that the
suspension has become unreasonable.” Petition for Review (PFR) File, Tab 1.
He acknowledges tha t he may have misunderstood the deadline, explaining that
he has no experience in these matters and no one to help him. Id. The agency
responds in opposition to the appellant’s petition for review. PFR File, Tab 3.
4
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 The appellant bears the burden to prove by preponderan t evidence that his
appeal was timely filed. 5 C.F.R. § 1201.56 (b)(2)(i) (B). The Board’s regulations
provide that an appeal must be filed with the Board no later than 30 days after the
effective date of the agency’s action, or 30 days after the date of the appellant’s
receipt of the agency decision, whichever is later. 5 C.F.R. § 1201.22 (b). As
noted above, the appell ant received the agency’s decision on August 1, 2016,
making his appeal due on August 31, 2016. Id.; IAF, Tab 1 at 10. The date of a
filing submitted by mail is determined by the postmark date. 5 C.F.R.
§ 1201.4 (l). The appellant’s appeal is postmarked September 6, 2016. IAF,
Tab 1. Thus, we agree with the administrative judge that the appellant untimely
filed his appeal.
¶7 To establish good cause for the untimely filing of an appeal, a party must
show that he exercised due diligence or ordinary prudence under the particular
circumstances of the case. E.g., Marcantel v. Department of Energy ,
121 M.S.P.R. 330 , ¶ 10 (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 considers the length of the delay, the reasonableness of the appellant’s
excuse and his showing of due diligence, whether the appellant 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 that similarly shows a causal relationship to
his inability to timely file his petition. E.g., 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 In the absence of a showing of good ca use, the Board has dismissed appeals
as untimely filed even when the filing delay was minimal. Melendez v.
Department of Homeland Security , 112 M.S.P.R. 51 , ¶ 16 (2009) (holding that the
appellant failed to show good cause for his 3 -day filing delay) ; White v.
Department of Justice , 103 M.S.P.R. 312 , ¶¶ 10, 15 (2006) (determining that the
5
appellant failed to show good cause for his 5 -day filing delay), aff’d ,
230 F. App’x 976 (Fed. Cir. 2007) . In his only responsive pleading below, the
appellant failed to offer any explanation as to why he had been unable to submit a
timely appeal . IAF, Tab 6. Thus, despite the minimal delay , we find that the
appellant has failed to demonstrate good cause for the untimel iness of his appeal .
¶9 Further, despite the appellant’s pro se status and his professed inexperience
with Board matters, PFR File, Tab 1, it is well established that lac k of familiarity
with the Board’ s practices does not constitute good cause for waiver of its
timeliness requirements, Mata v. Office of Personn el Management , 53 M.S.P.R.
552, 554 –55, aff’d, 983 F.2d 1088 (Fed. Cir. 1992) (Table); see Caballero v.
Department of the Army , 59 M.S.P.R. 298 , 302 (1993) ( finding that inexperience
with legal matters and unfamiliarity with Board procedures do not warrant waiver
of the Board’s deadlines). Considering the clarity with which the agency
explained the appellant’s appeal rights, the appellant’s explicit acknowledgment
that the agency’s decision letter notified him that he had “30 days to appeal this
decision ” to the Board, and his failure to address the timeliness of his appeal in
his response to the administrative judge’s order below , IAF, Tab 1 at 1, 8, Tabs 3,
6, we agree with the administrative judge that the appeal was untimely filed
with out good cause shown for the delay.
¶10 For these reasons, we affirm the administrative judge’s decision to dismiss
the appeal as untimely filed with no showing of good cause for the delay.
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).
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
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
7
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative re ceives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U. S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively , you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such reques t with the
8
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative r eceives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Fe deral Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9 )(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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
9
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you m ust submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing p ro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the F ederal 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.
10
Contact information for the courts of appeals can be found at their
respective websites, which ca n be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | GOELLNER_DETLEF_SF_0752_16_0757_I_1_FINAL_ORDER_1981390.pdf | 2022-11-29 | null | SF-0752 | NP |
3,895 | https://www.mspb.gov/decisions/nonprecedential/MCNAMARA_TIMOTHY_J_DC_1221_15_0813_W_1_FINAL_ORDER_1981640.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TIMOTHY J. MCNAMARA,
Appellant,
v.
DEPARTMENT OF STATE,
Agency .
DOCKET NUMBER
DC-1221 -15-0813 -W-1
DATE: November 29, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Timothy J. McNamara , Chula Vista, California, pro se .
Marianne Perciaccante , 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 individual right of action (IRA) appeal for lack of jurisdiction.
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
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during 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 . Except as expressly MODIFIED by
this Final Order t o find that the appellant did not exhaust his remedies as to his
first Office of Special Counsel (OSC) complaint, but did exhaust as to his second
OSC complaint, we AFFIRM the initial decision.
BACKGROUND
¶2 On November 13, 2013, the appellant retired from his position as an
Information Program Officer with the Foreign Service. Initial Appeal File (IAF),
Tab 7 at 103. At some point thereafter, he filed a complaint with OSC in which
he alleged that his retirement was a constructive discharge imposed upon hi m by
agency officials in retaliation for his having filed a complaint with the Office of
Inspector General (OIG) on May 23, 2013. IAF, Tab 1 at 4. In a March 26, 2015
letter, OSC notified the appellant that it had closed its file, and advised him of his
right to file an IRA appeal with the Board. Id.
¶3 The appellant filed a timely appeal, IAF, Tab 1, and requested a hearing.
Id. at 2. After the agency submit ted its file in response, IAF, Tabs 5-9, and
moved to dismiss the appeal for lack of jurisdiction, IAF, Tab 10, the
administrative judge issued an order advising the appellant of the jurisdictional
requirements for an IRA appeal based on a claim of retalia tion for protected
3
disclosures under 5 U.S.C. § 2302 (b)(8) and protected activity under 5 U.S.C.
§ 2302 (b)(9)(A)(i) -(D), IAF, Tab 15, and directed him to file a statement,
accompanied by evidence, addressing those jurisdictional requirements. Id.
at 6-7.
¶4 The appellant responded to the order, IAF, Tabs 17-21, 23, and the agency
again urged that the appeal be dismissed for lack of jurisdict ion. IAF, Tab 22.
¶5 Based on the written record, the administrative judge dismissed the appeal
for lack of jurisdiction, IAF, Tab 28, Initial Decision (ID) at 1, 15, finding that
the matters the appellant disclosed to the OIG were not protected under 5 U.S.C.
§ 2302 (b)(8). ID at 10-13. In the alternative, the administrative judge found that
the appellant failed to prove that he exhauste d his remedies with OSC. ID
at 13-14.
¶6 The appellant ha s filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 3,
and the appellant has filed a reply to the agency’s response.2 PFR File, Tab 4.
ANALYSIS
¶7 As noted by the administrati ve judge, the appellant filed two complaints
with OSC. The first complaint, MA -13-2836, was filed on May 1, 2013.3 IAF,
Tab 3. In that complaint, the appellant described abuse of authority and nepotism
by the agency in violation of its regulations and s tatute when he was unjustly
accused of sexual harassment and involuntarily curtailed from his post in Tijuana ,
Mexico, and reassigned to Washington, D.C. so that the Consul General could
place her husband in the appellant’s former position ; when the agency suspended
2 With his reply, the appellant has submitted documents related to the investigation into
an equal employment opportunity complaint he filed on October 23, 2013. PFR File,
Tab 4 at 19-167. We have not considered this part of his submission because a reply to
a response to a petition for review is limited to the factual and legal issues raised in the
response to the petition for review. 5 C.F.R. § 1201.114 (a)(4).
3 The administrative judge erroneously found that the appellant failed to provide a copy
of this complaint. ID at 7.
4
his security clearance ; and when it denied him access to the internal unclassified
system. However, the appellant did not, in the complaint, indicate that he
disclosed any of this alleged wrongdoing . Id. Nepotism constitutes a violation of
5 U.S.C. § 2302 (b)(7). However, for an appellant to have an individual right of
action allowing them to seek corrective action from the Board, they must allege a
violation of 5 U.S.C. § 2302 (b)(8) or (b)(9)(A)(i), (B), (C), or (D). 5 U.S.C.
§ 1221 (a). It does not appear, therefore, that the Board has jurisdiction over OSC
complaint MA-13-2836. Davis v. Department of Defense , 103 M.S.P.R. 516, ¶ 11
(2006) ( finding that an appellant’s submissions to OSC , which simply alleged that
his supervisor and agency committed prohibited personnel practice s, did not
contain allegations that would have given OSC a sufficient basis to pursue an
investigation of whistleblower reprisal as described in the Whistleblower
Protection Act (WPA) , thus failing to establish jurisdiction for an IRA appeal ).
¶8 In any event, as to OSC’s closure letter of December 5, 2013, the appellant
did not file the instant appeal until May 29, 2015, well after the 60 -day time limit
provided under 5 U.S.C. § 1214 (a)(3)A) or the 65 -day time limit provided under
5 C.F.R. § 1209.5 (a)(1). Although the app ellant argued below that he di d not
receive OSC’s closure letter until April 14, 2014, IAF, Tab 26 at 57, he still
did not file an appeal within 60 days of that date. 5 C.F.R. § 1209.5 (a)(1). Nor
has he provided any reason why the filing period should be suspended under the
doctrine of equitable estoppel. Heimberger v. Department of Commerce ,
121 M.S.P.R. 10, ¶ 10 (2014). Therefore, as to OSC complaint MA -13-2386,
even if the appellant exhausted his remedy before OSC, his appeal must be
dismissed as untimely filed. Id., ¶ 13.
¶9 The record does not indicate the date the appellant filed the second OSC
complaint, MA -14-1990. The administrative judge found in the alternative that,
as to this complaint, the appellant did not exhaust his administrative remedies
with OSC because, despite being ordered to do so, he failed to submit a copy of
5
the complaint, and because OSC’s termination letter lacked specificity regarding
the actual disclosures he r aised in that complaint. ID at 13-14.
¶10 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 mor e
detailed account of his whistleblowing activities before the Board than he did to
OSC. An appellant may demonstrate exhaustion through his initial OSC
complaint, evidence that he amended the original complaint, including but not
limited to OSC’s determi nation letter and other letters from OSC referencing any
amended allegations, and the appellant’s written responses to OSC referencing
the amended allegations . An appellant may also establish exhaustion through
other sufficiently reliable evidence, such a s an affidavit or declaration attesting
that the appellant raised with OSC the substance of the facts in the Board
appeal. Id.
¶11 It is true that the appellant failed to submit a copy of O SC complaint
MA-14-1990. However, this is not required to establish jurisdiction. According
to the March 26, 2015 notice of appeal rights issued by OSC, the appellant
alleged in this complaint that the agency constructively discharged him in
retaliation for filing an OIG complaint regarding a violation of its internal
manual, 3 FAM 4377, which prohibits employees from making false or unfounded
statements concerning an officer or employee of the U.S. Government, and
5 U.S.C. § 2302 (b)(7), which prohibits nepotism. According to the closure letter,
the appellant allege d that a female subordinate unjustly accused him of sexual
harassment in order to have him removed from post, thereby assisting the Consul
6
General in promoting her husband into the appellant’s former po sition.4 IAF,
Tab 1 at 4.5 Therefore, contrary to the administrative judge’s alternative finding,
we find that OSC’s March 26, 2015 closure le tter is sufficient to
establish exhaustion .
¶12 The administrative judge otherwise found that the matters the appe llant
disclosed to the OIG were not protected under 5 U.S.C. § 2302 (b)(8) of the WPA
and that therefore the Board lacked jurisdiction over these claims. ID at 10-13.
However, the Whistleblower Protection Enhancement Act of 2012 (WPEA)
expanded the Board’s jurisdiction over IRA appeals , providing that protected
activities include both disclosures defined by 5 U.S.C. § 2302 (b)(8), and
activities defined by 5 U.S.C. §§ 2302 (b)(9)(A)(i), (B), (C), or (D). See 5 U.S.C.
§ 1221 (a). Unde r subsection (C), an employee engages in p rotected activity when
he cooperates with or discloses information to the OIG “in accordance with
applicable provisions of law.” Notwithstanding the comprehensive jurisdictional
order he issued, IAF, Tab 15, t he administrative judge failed to consider tha t, in
OSC complaint MA -14-1990 , the appellant alleged that the agency retaliated
against him because of his protected activity in filing with the OIG. IAF, Tab 1
at 4; Tab 7 at 105-113. As such, based on the record evidence, we find that the
appellant nonfrivolously alleged that he engaged in protected activity under
5 U.S.C. § 2302 (b)(9)(C) when he filed the OIG complaint .
¶13 To establish the Board’s jurisdiction over his IRA appeal, the appella nt also
must nonfrivolously allege that the protected activity was a contributing factor in
4 These are the same claims the appellant rai sed in his OIG complaint. IAF, Tab 7
at 105-113.
5 While 5 U.S.C. § 1221 (f)(2) provides that OSC’s decision to terminate its
investigation may not be considered in an IRA appeal, “[t]he purpose of this evidentiary
rule . . . is to ensure that a whistleblower is not ‘penalized’ or ‘prejudiced’ in any way
by OSC’s decision not to pursue a case.” Costin v. Department of Health & Human
Services , 64 M.S.P.R. 517, 531 (1994) . However, there is n o statutory violation in the
Board’s consideration of OSC’s closure letter solely to determine the issue of
exhaustion. Lewis v. Department of Defense , 123 M.S.P.R. 255, ¶ 10 (2016).
7
the agency’s decision to take or fail to take a personnel action as defined by
5 U.S.C. § 2302 (a). One w ay an employee can make such an allegation is by
means of the knowledge -timing test, that is, through circumstantial evidence,
including evidence that the official taking the personnel action knew of the
protected activity, and that the personnel action oc curred within a period of time
such that a reasonable person could conclude that the protected activity was a
contributing facto r in the personnel action. Mason v. Department of Homeland
Security , 116 M.S.P.R. 135, ¶ 26 (2011) .
¶14 The appellant asserted below that, based on the report of investigation
prepared regarding the equal employment opportunity complaint he filed on
October 24, 2013, his supervisor at the time he retired was aware that he had
earlier filed an OIG complaint , although the supervisor was not mentioned in it .
IAF, Tab 12 at 20. However, while the appellant retired on November 13, 2013,
when he became eligible, 6 months after he filed the OIG complaint, he
acknowledg ed that he began to p lan his retirement on January 12, 2012, a year
and a half before he filed the OIG complaint. Id. at 8-9, 12-13. Based o n this
circumstantial evidence, we find that a reasonable pe rson could not conclude that
the appellant ’s protected activity was a contributing factor in his retirement , and,
therefore, he failed to make the necessary nonfrivolous allegations to establish the
Board’s jurisdiction over his IRA appeal.6 The initial d ecision, as supplemented
by this Final Order, constitutes the Board’ s final decision in this matter. 5 C.F.R.
§ 1201.113 .
6 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
8
NOTICE OF APPEAL RIG HTS7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described bel ow do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filin g time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicia l review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
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.
9
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Cou rt of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any a ttorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropri ate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protecti on Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
10
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
11
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice descri bed in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of c ompetent jurisdiction.8 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition fo r judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed in to law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appe als of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
12
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 | MCNAMARA_TIMOTHY_J_DC_1221_15_0813_W_1_FINAL_ORDER_1981640.pdf | 2022-11-29 | null | DC-1221 | NP |
3,896 | https://www.mspb.gov/decisions/nonprecedential/FRIDAY_RONALD_DOUGLAS_AT_3330_17_0311_I_1_FINAL_ORDER_1980941.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RONALD DOUGLAS FRIDA Y,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
AT-3330 -17-0311 -I-1
DATE: November 28, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ronald Douglas Friday , Blythewood, South Carolina, pro se.
Eric J. Teegarden , Esquire, Fort McCoy, Wisconsin, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA). Generally, we grant petitions such as this
one only in the following circ umstances: 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 argume nt is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 We agree with the administrative judge’s conclusion in the initial de cisio n
that the appellant failed to file his VEOA complaint with the Secretary of Labor
within 60 days of the date of the alleged violation, as required by 5 U.S.C.
§ 3330a (a)(2)(A) , and did not satisfy the requirements for equitable tolling to
apply . Initial Appeal File (IAF), Tab 8, Initial Decision (ID); see IAF, Tab 6
at 4-6, 23 -49, Tab 7 at 15 -16, 18. Because of this , the Board must deny the
appellant’s request for corrective action. See Garcia v. Department of
Agriculture , 110 M.S.P.R. 371 , ¶ 13 (2009).
¶3 In his petition for review, the appellant argues that the administrative judge
did not address his claim that the agency failed to contact him to discuss
settlement as ordered . Petition for Review (PFR ) File, Tab 1 at 4. The appellant,
howeve r, did not raise this issue during the adjudication of his appeal before the
administra tive judge. The Board generally will not consider an argument raised
for the first time in a petition for review absent a showing that it is based on new
and material e vidence not previously available despite the party ’s due diligence.
Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (198 0). There has
been no showing of these circumstances. Notwithstanding, the appellant has not
3
demonstrated how the agency’s failure to contact him regarding settlement
prejudiced any of his substantive rights , and the allegation provides no basis to
reverse the initial dec ision. See Mobery v. Department of the Navy , 65 M.S.P.R.
110, 114 -15 (1994) .
¶4 The appellant then cites his unfamiliarity w ith the deadline in filing a
VEOA c omplaint as a reason to grant his petition for review. PFR File, Tab 1
at 4. The U.S. Supreme Court has held that “ excusable neglect ” does not warrant
equitable tolling of a statutory filing deadline. Irwin v. Department of V eterans
Affairs , 498 U.S. 89 , 96 (1990); see Wood v . Department of the Air Force ,
54 M.S.P.R. 587 , 593 (1992). Equitable tolling applies when the claimant has
actively pursued judicial remedies by filing a defective pleading during the
statutory period or when the claimant was induced or tricked by his /her
adversary’ s misconduct into allowing the filing deadline to pass. Irwin , 498 U.S.
at 96. As mentioned above, we agree with the administrative judge’s finding that
equitable tolling does not apply in this case. ID at 5 -6.
¶5 The appellant also argues on review that the Board should hold a hearing to
address his VEOA claim. PFR File, Tab 1 at 4. VEOA complainants , though, do
not have an unconditional right to a hearing before the Board , and the Board may
dispose of such an ap peal without a hearing. Coats v. U.S. Postal Service ,
111 M.S.P.R. 268 , ¶ 13 (2009); see 5 C.F.R. § 1208.23 (b). Disposition of a
VEOA appeal without a hearing is appropriate whe n there is no genuine dispute
of material fact and one party must prevail as a matter of law. Coats ,
111 M.S.P.R. 268 , ¶ 13 . A decision on the appellant’s VEOA appeal without a
hearing wa s proper in this instance because, as the ad ministrative judge correctly
found, there was no genuine dispute of material fact that the appellant untimely
filed a VEOA complaint w ith the Secretary of Labor and equitable tolling does
not apply . ID at 5 -6; IAF, Tab 6 at 4, 6, 23-49, Tab 7 at 15 -16, 18 . The issues
were fully developed through the parties’ pleadings , and there is no basis for any
4
other conclusion. IAF, Tabs 4, 6 -7. Under the undisputed facts presented, t he
agency prevail s as a matter of law . See Garcia , 110 M.S.P.R. 371 , ¶ 13 n.4.
¶6 The a ppellant further contends on review that the agency should not receive
a “free pass” for not responding to his communications regarding his ineligibility
rating and nonselection. PFR File, Tab 1 at 4-5. However, t he administrative
judge considered this argument in the initial decision when determining that
equitable tolling does not apply , and there is no reason to disturb this conclusion.
ID at 5 -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 s uch
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provid e legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decisi on, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the 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.
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.
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 submi t your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the co urt’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono r epresentation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Ci rcuit. 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
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 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 onl y, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
7
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 2 0507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Cour t of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by a ny court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whis tleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | FRIDAY_RONALD_DOUGLAS_AT_3330_17_0311_I_1_FINAL_ORDER_1980941.pdf | 2022-11-28 | null | AT-3330 | NP |
3,897 | https://www.mspb.gov/decisions/nonprecedential/SUTTON_TRAVIS_LAMONT_DC_0752_16_0130_I_3_FINAL_ORDER_1981028.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TRAVIS LAMONT SUTTON ,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency. DOCKET NUMBER
DC-0752 -16-0130 -I-3
DATE: November 28, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Simon Banks , Alexandria, Virginia, for the appellant.
Timothy R. Zelek , Quantico, 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 that
affirmed his removal . For the reasons set forth below, we DISMISS the
appellant’s petition for review as untimely filed with no good cause shown.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 On November 13, 2015, the a gency issued a decision sustaining the
appellant’s removal for “Inappropriate Conduct” and “Making Statements that
Caused Anxiety or Concern in the Workplace.”2 Initial Appeal File (IAF) , Tab 12
at 25 -27. The appellant challenged the action on appeal. I AF, Tab 1. In a
May 24, 2018 initial decision based on the written record, Sutton v. Department
of the Navy , MSPB Docket No. DC -0752 -16-0130 -I-3, Appeal File (I -3 AF),
Tab 37, Initial Decision ( I-3 ID ), the administrative judge found that : (1) both
charg es were sustained, I-3 ID at 7 -16; (2) the appellant failed to establish his
claim s of disability discrimination, id. at 16 -27; retaliation for whistleblowing, id.
at 28 -34; and harmful procedural error, violation of law or due process, id.
at 34-38; and (3) adverse action under these circumstances promotes the
efficiency of the service and removal is a reasonable penalty for the sustained
charges, id. at 38-43. Accordingly, the administrative judge affirmed the
agency’s action, id. at 1, 43 , and notified the parties that the initial decision
would become final on June 28, 2018, unless either party filed a petition for
review by that date, id.
¶3 On July 13, 2018, the appell ant filed a petition for review. Petition for
Review (PFR) File, Tab 1 at 6 -20. He e xplained that he had attempted to “e-file
or FAX ” it, just minutes before the expiration for the filing deadline, but had
experienced difficulty, and so sought to submit the petition for review by email to
the Board at MSPB.gov. Id. at 4. The Clerk of th e Board issued a letter to the
appellant and his representative stating that the petition for review appeared to be
untimely filed because it was not postmarked or received on or before June 28,
2018. PFR File, Tab 2 at 1. The Clerk of the Board afforded the appellant an
2 The appeal was twice dismissed without prejudice. Sutton v. Department of the Navy ,
MSPB Docket No. DC -0752 -16-0130 -I-1, Initial Decision at 1, 3 (Aug. 3, 2017); Sutton
v. Department of the Navy , MSPB Docket No. DC -0752 -16-0130 -I-2, Initial Decision
at 1, 2 (Feb. 12, 2018).
3
opportunity to file a motion to accept the filing as timely and/or to waive the time
limit for good cause , and stated that such a motion must be accompanied by a
statement signed under penalty of perjury or an affidavit, postmarked, if ma iled,
or sent by facsimile on or before July 28, 2018. Id. at 2. The appellant filed a
timeliness motion in response. PFR File, Tab 3. The agency did not file a
response to the appellant’s petition for review .
ANALYSIS
¶4 The Board’s regulations require that a petition for review be filed within
35 days after the date of issuance of the initial decision, or, if a party shows that
he received the initial decision more than 5 days after it was issued, within
30 days after his receipt of the initial decision. Palermo v. Department of the
Navy , 120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R. § 1201.114 (e). The appellant’s
representative asserts that he received access to the May 24, 2018 initial decision
“on or about May 29, 2018.” PFR File, Tab 3 at 4. However, because the
appellant and his r epresentative were registered e -filers, I -3 AF, Tab 38, they are
deemed to have received the initial decision on the date of electronic submission,
May 24, 2018 , 5 C.F.R. § 1201.14 (m)(2) , and, as stated in the initial decision, the
petition for review was due 35 days later, on June 28, 2018. I-3 ID at 43.
Accordingly, the petition for review, filed on July 13, 2018, was 15 days late.
¶5 The Board will waive the filing deadline for a petitio n for review upon a
showing of good cause for the untimely filing. Palermo , 120 M.S.P.R. 694, ¶ 4;
5 C.F.R. § 1201.114 (g). The party who submits an untimely petition for review
has the burden of establishing good cause for the untimely filing by showing that
he exercised due diligence or ordinary prudence under the particu lar
circumstances of the case. Palermo , 120 M.S.P.R. 694 , ¶ 4; Alonzo v.
Department of the Air Force , 4 M.S.P.R. 180 , 184 (1980). To determine whether
a party has shown good cause, the Board will consider the length of the delay, the
reasonableness of his excuse and his showing of due diligence, whether he is
4
proceeding pro se, and whether he has presented evidence of the existence of
circumstances beyond his control that affected his ability to comply with the time
limit or unavoidable casualty or misfortune that si milarly shows a causal
relationship to his ability to timely file his 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)
(Tab le).
¶6 Under limited circumstances, the Board will excuse delays in filing caused
by difficulties encountered with the Board’s e -Appeal system. E.g., Salazar v.
Department of the Army , 115 M.S.P.R. 296 , ¶¶ 6-8 (2010) (excusing a filing delay
when the appellant alleged that he attempted to electronically file his petition for
review on time and the e -Appeal system showed that he had, in fact, accessed the
system prior to the date his petition was due ; it was possible to exit the system
without receiving a clear warning that he had not yet filed his pleading; and once
he became aware that his petition had not been filed, he contacted the Board and
submitted a petition for review that included an exp lanation of his untimeliness);
Lamb v. Office of Personnel Management , 110 M.S.P.R. 415 , ¶ 9 (2009)
(excusing the untimely filing of an a ppeal when the appellant reasonably believed
he filed timely by completing all the questions on the on -line appeal form and
exited the website without receiving a clear warning that his appeal was not
filed) . However, we do not find that the appellant ’s failure to file timely is
excusable in this instance.
¶7 The appellant ’s representative here claims that he “experience d heightened
difficult y” in his ability to e -file in the minutes before midnight on the final date
for filing , June 28, 2018, such that, “based upon exigency of the circumstances”
and “given the time restriction afforded,” he felt he had no other alternati ve but to
submit the petition for review to the Board via email. PFR File, Tab 1 at 4. In a
different pleading, the appellant ’s representative states that, when he attempted to
use e -Appeal minutes before the end of the filing period, “it was not sit uated
where it could be assessed (sic).” PFR File, Tab 1 at 22. The Board’s e-Appeal
5
logs do not show that the appellant ’s representative accessed e -Appeal on
June 28, 2018.3 Notably , there were no e-Appeal site issues or system -wide
outages recorded on June 28, 2018. Moreover , by his own admission, the filing
“difficult y” the appellant ’s representative encountered was due to the fact that his
personal computer “contained an excessive amount of photos, videos, emails and
other files ,” causing a delay in populating and requiring him to p urchase
additional space “to accommodate the ever increasing data.”4 PFR File, Tab 3
at 5.
¶8 Based on the above, we find that the appellant has failed to establish good
cause for his untimely petition for review. When an appellant delays the filing of
his petition for review until the eleventh hour, he bears the risk that unforeseen
circumstances could prevent the timely filing of his petition for review. Baker v.
Department of Justice , 41 M.S.P.R. 25, 27 (1989). The actions of the appellant’s
representative in waiting until minutes before the filing dea dline to submit his
pleading does not demonst rate the exercise of due diligence or ordinary prudence ,
id. (citing Alonzo , 4 M.S.P.R. at 184 ), neither does his use of email, as he had
been made aware that the Board does not accept pleadings by email. 5 C.F.R.
§ 1201.14 (d). Notwithstanding , he waited more than 2 weeks after again being so
notified to file his petition for review. Moreover, t he appellant was not pro se,
and, whatever the issues his representative experienced with his personal
computer, he has failed to show any circumstances beyond his control such as
3 The Board’s e-Appeal logs show that the appellant successfully logged on the New
Appeal section on June 28, 2018, and accessed his account information, but there is no
indicat ion that he attempt ed to file a pleading , as is required to submit a petition for
review .
4 In an effort to show that the Board received the petition for review he claims he filed
by email on June 28, 2018, the appellant has submitted a portion of an email he
received from the Board on June 29, 2018. PFR File, Tab 1 at 26, Tab 3 at 10. Our
review of the email communication from the Office of the Clerk of the Board reflects
that the Board advised the appellant that he previously had been notified that the Board
does not accept submissions by email, and th at therefore his submission would not be
placed in the record in this appeal. See 5 C.F.R. § 1201.14 (d).
6
unavoidable casualty or misfortune that affected his ability to comply with the
time limits. See Palermo , 120 M.S.P.R. 694 , ¶¶ 5-8, 10 (finding a petition for
review untimely when the appellant and his representative were registered
e-filers, should have realized from system notices that the petiti on had not been
submitted, and failed to file the petition until 7 days after it was due) ; Sofio v.
Internal Revenue Service , 7 M.S.P.R. 667 , 670 (1981) (finding that t he appellant
is responsible for the errors of his chosen representative ).
¶9 Accordingly, we dismiss the petition for review as untimely filed with no
good cause shown .5 This is the final decision of the Merit Systems Protection
Board on 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 HTS6
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how 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.
5 The appellant’s motion to join this matter with an appeal he filed “in 2016,” PFR File,
Tab 4, is DENIED.
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
Please read carefully each of the 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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
8
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, o n unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accesse d through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you r eceive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later tha n 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
9
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.7 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeal s
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 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 court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the U.S.
Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | SUTTON_TRAVIS_LAMONT_DC_0752_16_0130_I_3_FINAL_ORDER_1981028.pdf | 2022-11-28 | null | DC-0752 | NP |
3,898 | https://www.mspb.gov/decisions/nonprecedential/HORVATH_MICHAEL_J_SF_1221_16_0446_W_1_FINAL_ORDER_1981051.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MICHAEL J. HORVATH,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
SF-1221 -16-0446 -W-1
DATE: November 28, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael J. Horvath , Los Angeles, California, pro se.
Jessica A. Neff , 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 individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, 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
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant is employed as a Special Agent with the agency’s U.S. Secret
Service. Initial Appeal File (I AF), Tab 1 at 1. On April 27, 2016, he filed a
Board appeal alleging that on December 15, 2015, he was removed from a
candidate nominee operations section (CNOS) assignment in retaliation for filing
a grievance concerning his 5 -day suspension. Id. at 5. The administrative judge
issued an order on jurisdiction in which he informed the appellant that, to
establish Board jurisdiction over his IRA appeal, he had to demonstrate that he
had exhausted his whistleblowing claims before the Office of Special Couns el
(OSC) and make nonfrivolous allegations that he made a protected disclosure or
engaged in protected activity that was a contributing factor in a pe rsonnel action
taken against him. IAF, Tab 5. In response, the appellant contended that he
made protected disclosures and engaged in protected activity on a variety of dates
between August 2015 and January 5, 2016. IAF, Tab 7 at 4-10. He also
submitted a copy of his OSC complaint and correspondence with OSC. IAF,
Tab 7 at 37-48, Tab 14 at 32-35.
3
¶3 Without holding the requested hearing, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 21, Initial
Decision (ID). The ad ministrative judge found that the sole claim the appellant
had exhausted before OSC was that on December 15, 2015, he was removed from
the CNOS assignment and other protection assignments in retaliation for his
December 18, 2015 grievan ce of a 5 -day suspension . ID at 8. However, the
administrative judge found that the Board lacks jurisdiction over such a claim
because the appellant’s grievance did not seek to remedy whistleblower reprisal
under 5 U.S.C. § 2302 (b)(8). ID at 12-13. The administrative judge fu rther
found that the appellant failed to nonfrivolously allege that his grievance was a
contributing factor in the agency’s decision because the appellant filed his
grievance after learning that he had been removed from the CNOS rotation. ID
at 13-15. Lastly, he found that the appellant failed to exhaust his administrative
remedies with OSC regarding his remaining claims that he made protected
disclosures and engaged in protected activity . ID at 8-11.
¶4 The appellant has filed a petition for review in wh ich he asserts that the
administrative judge erred in finding that he failed to exhaust his administrative
remedies regarding additional alleged protected disclosures .2 Petition for R eview
(PFR) File, Tab 1 at 10-14. The agency has opposed the appellant’ s petition.
PFR File, Tab 3. The appellant has filed a reply. PFR File, Tab 4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 Under U.S.C. § 1214 (a)(3) , an employee is required to exhaust his
administrative remedies with OSC before seeking corrective action from the
2 The appellant also asserts that new evidence shows that he has been removed from a
new work assignment in further retaliation for his disclosures and for filing the instant
appeal. PFR File, Tab 1 at 14-17. 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). The appellant’s arguments on review are not of such weight because
they do not pertain to the dismissal of his claims for failure to exhaust them before OSC
or otherwise estab lish jurisdiction.
4
Board in an IRA appeal. Mason v. Department of Homeland Security ,
116 M.S.P.R. 135, ¶ 8 (2011). An appellant filing an IRA appeal has not
exhausted his OSC remedy unless he has filed a complaint with OSC and either
OSC has notified him that it was terminating its investi gation of his allegations or
120-calendar days have passed since he first sought corrective action. Simnitt v.
Department of Veterans Affairs , 113 M.S.P.R. 313, ¶ 8 (2010). T he Board has
recently clarified that t o satisfy the exhaustion requirement, the appellant must
provide OSC with sufficient basis to pursue an investigation. Chambers v.
Department of Homeland Security , 2022 MSPB 8 , ¶¶ 10-11. While the Board’s
jurisdiction is limited to those issues that have been previously raised with OSC,
an appellant may give a more detailed account of his whistleblowing activities
before the Board than he did to OSC. An appellant may demonstr ate exhaustion
through his initial OSC complaint, evidence that he amended the original
complaint, including but not limited to OSC’s determination letter and other
letters from OSC referencing any amended allegations, and the appellant’s written
responses to OSC referencing the amended allegations . An appellant may also
establish exhaustion through other sufficiently reliable evidence, such as an
affidavit or declaration attesting that the appellant raised with OSC the substance
of the facts in the Board appeal. Id.
¶6 We agree with administrative judge that the sole claim the appellant
exhausted before OSC was his being removed from the CNOS assignment in
retaliation for filing a grievance of his 5-day suspension. ID at 9. In his OSC
complaint , the appellant alleged that he was removed from a preselected work
assignment “in retaliation for a reserved right of grievance [he] maintained in
regards to a propo sal for sus pension.” IAF, Tab 7 at 42. OSC construed his
claim as such and issued a close -out letter characterizing the appellant’s claim as
follows : “[y]ou allege that because of your suspension and subsequent grievance,
you were disallowed from serving on the Candidate Nominee Shift and other
protective missions.” IAF, Tab 1 at 18.
5
¶7 As the administrative judge properly found, the Board lacks jurisdiction
over a claim of reprisal for filing a grievance, unless the grievance concerns
remedying a violation of whistleblower reprisal under 5 U.S.C. § 2302 (b)(8). ID
at 12-13; see Mudd v. Department of V eterans Affairs , 120 M.S.P.R. 365, ¶ 7
(2013) ; see also Young v. Merit Systems Protection Board , 961 F.3d 1323 , 1329
(Fed. Cir. 2020) (stating that “[s]ection 2302(b)(9)(A)(ii), which is not included
in the list of prohibited personnel practic es for which the Board can issue
corrective action, covers retaliation for exercising any appeal, complaint, or
grievance right other than one seeking to remedy a violation of
section 2302(b)(8) [,] [r]etaliation for filing those other types of complaints i s
remediable through different mechanisms, and not by an IRA appeal to the
Board”) .3 To the extent the appellant argues that the admi nistrative judge
improperly found that his grievance did not seek to remedy whistleblower
reprisal, PFR File, Tab 1 at 5-6, 14, any er ror does not provide a basis for reversal
because the administrative judge also found that the appellant failed to
nonfriv olously allege that his December 18, 2015 grievance was a contributing
factor in the agency’s prior December 15, 2015 decision to remo ve him from the
CNOS assignment, ID at 13-14; see Panter v. Department of the Air Force ,
22 M.S.P.R. 281, 282 (1984) (stating that an adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis fo r reversing an
initial decision) .
¶8 On review, the appellant reiterates his arguments below that he exhausted
additional alleged protected disclosures before OSC, including the following:
3 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
Whistleblower Protection Enhancement Act of 2012 , Pub. L. N o. 112-199, 126 Stat.
1465 , extended for 3 years in the All Circuit Review Extension Act, Pub. L.
No. 113-170, 128 Stat. 1894 , and eventually made permanent in the All Circuit Review
Act, Pub. L. No. 115-195, 132 Stat. 1510 , appellants may file petitions for judicial
review of Board decisions in whistleblower reprisal cases with any circuit court of
appeals of competent jurisdiction. See 5 U.S.C. § 7703 (b)(1)(B).
6
(1) his alleged disclosure in an August 19, 2015 memorandum that hi s supervisor
had been derelict in his responsibilities and abused his authority by assigning the
appellant to respond to a duty call on August 7, 2015; (2) his alleged protected
activity during an August 27, 20154 meeting in which he expressed his intent t o
file a grievance of his proposed 5 -day suspension; and (3) his alleged protected
activity in a December 18, 2015 email detailing his intent to file a grievance.5
PFR File, Tab 1 at 8-14. We have considered the appellant’s arguments on
review , however, for the reasons set forth in the initial decision , we agree with
the administrative judge that the information that the appellant provided to OSC
regarding these alleged protected disclosures was insufficient for it to pursue an
investigation that might le ad to corrective action. ID at 8-10; see, e.g. , El v.
Department of Commerce , 123 M.S.P.R. 76, ¶¶ 6-8 (2015) (finding that vague,
conclusory, unsupported, and pro forma allegations of alleged wrongdoing do not
meet the nonfrivolous pleading standard needed to establish the Board’s
jurisdiction over an IRA appeal) , aff’d , 663 F. App’x 921 (Fed. Cir. 2016) .
Moreover , as the administrativ e judge found, even assuming that the appellant
exhausted his remedy with OSC and nonfrivolously alleged that his December 18,
2015 email constituted a protected disclosure or protected activity, he failed to
nonfrivolously allege that it was a contributin g factor because it post -dates his
removal from the CNOS assignment on December 15, 2015. ID at 10 n.6 ; see
Linder v. Department of Justice , 122 M.S.P.R. 14, ¶ 16 (2014) (explaining that, to
satisfy the contributing factor criterion, an appellant must raise a nonfrivolous
allegation that the fact or content of the protected disclosure was one factor that
4 This meeting appears to have occurred on October 27, 2015, the date the appellant’s
suspension was proposed, not August 27, 2015. IAF, Tab 1 at 9, Tab 7 at 6; PFR File,
Tab 1 at 12.
5 The appellant does not challenge the administrative judge’s finding s that he failed to
exhaust his remed ies with OSC concerning his alleged protected disclosures and
activity on December 23 and December 31, 2015 , and January 5, 2016, and we discern
no error in the administrative judge’s analysis. ID at 11.
7
tended to affect the personnel action in any way); Kukoyi v. Department of
Veterans Affairs , 111 M.S.P.R. 404, ¶ 11 (2009) (recognizing that disclosure
made after the agency has taken the personnel actions at issue cannot have been
contributing factors in those personnel actions and do not meet the no nfrivolous
allegation requirements), overruled on other grounds by Mason , 116 M.S.P.R.
135, ¶ 26 n.7.
¶9 Accordingly, we find that the administrative judge properly d ismissed the
appeal for lack of jurisdiction.6
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 summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
6 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
9
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
10
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial 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 Federal Circuit or any court
of appeals of competent jurisdiction.8 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the Pre sident on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistle blower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
11
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.usco urts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither en dorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HORVATH_MICHAEL_J_SF_1221_16_0446_W_1_FINAL_ORDER_1981051.pdf | 2022-11-28 | null | SF-1221 | NP |
3,899 | https://www.mspb.gov/decisions/nonprecedential/FITZPATRICK_STEPHANIE_I_AT_0752_16_0266_P_1_FINAL_ORDER_1981069.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
STEPHANIE I. FITZPAT RICK,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-0752 -16-0266 -P-1
DATE: November 28, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
JoAnne Iyamu , Decatur, Georgia, for the appellant.
Mariane Dennise Rivera , Esquire , Decatur , Georgia, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied her motion for compensatory damages. On petition for review, the
appellant reiterates her request for damages, argu ing that the probationary
termination was the product of discrimination and retaliation, even though 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
decision reversing the probationary termination included no such findings.2
Generally, we grant petitions such as this one only in the following
circumst ances: 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 ru lings 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 i s 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,
whic h is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Althoug h 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 In part, the appellant’s allegation of retaliation could possibly implicate a compliance
matter. As explained in the order requiring that the agency cancel the probationary
termination and retroac tively restore her, the appellant may file a petition for
enforcement with the Board’s regional office if she believes that the agency has failed
to comply .
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
statement of how courts w ill rule regarding which cases fall within their
jurisdiction. If you wish to 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 fil e within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the 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 your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 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
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 Op portunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunit y Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclos ures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your 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 y ou may file a 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 c ourt of 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 whistleb lower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | FITZPATRICK_STEPHANIE_I_AT_0752_16_0266_P_1_FINAL_ORDER_1981069.pdf | 2022-11-28 | null | AT-0752 | NP |
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