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3,900	https://www.mspb.gov/decisions/nonprecedential/GODWIN_SHAEON_O_AT_0752_16_0209_I_1_FINAL_ORDER_1981077.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SHAEON O. GODWIN, Appellant, v. SOCIAL SECURITY ADMINISTRATION, Agency. DOCKET NUMBER AT-0752 -16-0209 -I-1 DATE: November 28, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1* Shaeon O. Godwin , Deerfield Beach, Florida, pro se. Natalie Liem and Richard H. Winters , Atlanta, Georgia, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed her removal for failure to follow management direc tives and conduct unbecoming a F ederal employee. For the reasons set forth below, the appellant’s 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future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 petitio n for review is DISMISSED as untimely filed without good cause shown. 5 C.F.R. § 1201.114 (e), (g). ¶2 The agency removed the appellant from her position as a GS-4 Claims Assistant based on charges of conduct unbecoming a Federal employee and failure to follow management directives. Initial Appeal File (IAF), Tab 1 at 2 -3, Tab 9 at 73 -78. She appealed her removal to the Board, disputing the agency’s charges and alleging harassment and discrimination based on race . Id. at 3. The appellant did not request a hearing. Id. at 2. ¶3 Based on the party’s written submissions, t he administrative judge issued an initial decision affirming the appellant’s removal. IAF, Tab 25 , Initial Decision (ID). The initial decision, issued on July 18, 2016, informed the appellant that any petition for review must be filed with the Board by August 22, 2016, or , if the appellant proved that she received the initial decision more than 5 days after the date it was issued, then she could file a petition for review within 30 days of the date that she received the initial decision. ID at 18. ¶4 The appellant filed a petition for review of the initial decision, which the Board received on September 6, 2016. Petition for Review (PFR) File, Tab 1. In a September 8, 2016 acknowledgment letter, t he Clerk of the Board (Clerk) informed the appellant that her petition for re view appeared to be untimely filed and afforded her the opportunity to file a motion to accept the filing as timely and/or waive the time limit for good cause . PFR File, Tab 2 . The Clerk further informed the appellant of the requ irements for filing the motion and indicated that it must be post marked , if mailed , or sent by fac simile on or before September 23, 2016. Id. On September 23, 2016, the appellant faxed a document to the Board requesting an extension and stating that she had not been receiving he r mail in a timely manner , that her attorney had withdrawn from her case without telling her, and that she did not know that she could ask for an extension . PFR File, Tab 3 at 2. The Board granted the appellant an extens ion, allowing her until October 7, 3 2016, to file a motion to accept her petition for review as timely filed or to waive the time limit . PFR File, Tab 4. The appellant, however, did not file anything further with the Board. The agency has responded in opposition to the appellant’s petition for review, arguing that it should be dismissed as untimely filed without good cause shown or, alternatively, for failing to meet the standards for obtaining review. PFR File, Tab 5 at 4. ¶5 A petition for review must be filed within 35 days after the date of issuance of the initial decision or, if the petitioner shows that the initial decision was received more than 5 days after the date of issuance, within 30 days after the date the petitioner received the initial decision. 5 C.F.R. § 1201.114 (e). Here, t he Board received the appellant’s petition for review of the July 18, 2016 initial decision on September 6, 2016 —more than 2 weeks after the August 22, 2016 filing deadline. PFR File, Tab 1 at 1. Although the appellant alleged mailing delays in connection with the Board’s September 8, 2016 acknowledgment letter, PFR File, Tab 3 at 2, she has not alleged that she did not timely receive the initial decision. Therefore, the appella nt’s petition for review is untimely filed. ¶6 The Board will waive the time limit upon a party’s showing of good cause for the delay in filing. Palermo v. Department of the Navy , 120 M.S.P.R. 69 4, ¶ 4 (2014). To establish good cause for an untimely filing , a party must show that she exercised due diligence or ordinary prudence under the particular circumstances of the case. Id.; Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184 (1980). To deter mine whether an appellant has shown good cause, the Board will consider the length of the delay, the reasonableness of her excuse and her showing of due diligence, whether she is proceeding pro se, and whether she has presented evidence of the existence of circumstances beyond her control that affected her ability to comply with the time limits or of unavoidable casualty or misfortune which similarly sh ows a causal relationship to her inability t o timely file her petition. Palermo , 120 M.S.P.R. 69 4, ¶ 4. 4 ¶7 As noted above, the appellant alleges that her atto rney withdrew from her case without informing her and appears to contend that th is precluded her from filing a timely petition for review . PFR File, Tab 3 at 2. However, an appellant’s inability to retain an attorney does not justify a delay in filing a petition for review. Perry v. Department of the Navy , 56 M.S.P.R. 159 , 161 (1992) , aff’d , 6 F.3d 787 (Fed. Cir. 1993) (Table) . Furthermore, a n appellant remains personally liable for the timely p rosecution of her appeal, and a representative withdrawing does not demonstrate good cause for an untimely filing . DeGraaf f v. Department of the Navy , 55 M.S.P.R. 343 , 346 (1992). Therefore, w e find that the appellant’s allegations regarding her attorney do not demonstrate good cause for waiving the filing deadline . ¶8 The appellant also alleges that she has been suffering from emotional stress, physical ailments, and hypertension . PFR File, Tab 1 at 2, Tab 3 at 2. Insofar as the appellant seeks to rely on her illness to show good cause for her untimely petition for review , she must demonstrate that she was unable to file her petition due to illness or mental or physical incapacity. Coleman v. U.S. Postal Service , 91 M.S.P.R. 469 , ¶ 5 (2002). To establish that an u ntimely filing was the result of an illness, a party must do the following : (1) identify the time period during which she suffered from the illness; (2) submit medical evidence showing that she suffered from the alleged illness d uring that time period; an d (3) expla in how the illness prevented her from timely filing her appeal or a request for an extension of time. Id. Here, the appellant has not explained how any of her conditions prevented her fr om filing her petition for review on time or from timely requesting an extension . PFR File, Tabs 1 , 3; see Williams v. Office of Personnel Management , 109 M.S.P.R. 237 , ¶ 10 (2008) ( finding that an appellant with hypertension and other ailments failed to meet standards for good cause because he did not allege , among other things, how his ail ments prevented him from 5 timely filing his petition for review ). Therefore , we find that the appe llant has failed to establish good cause for her filing delay based on illness . ¶9 Accordingly, 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 decision of the Board regarding the removal appeal. NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the f ollowing 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 regardi ng 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 app licable time limit may result in the dismissal of your case by your chosen forum. Please read 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 pa rticular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . 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 mo st 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 su bmit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additi onal information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’ s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regard ing pro bono representation for Merit Systems Protection Board appellants before the 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) Judicia l or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that 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 discrim ination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calen dar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems 7 Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and 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: 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 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 the Federal Circu it 717 Madison Place, N.W. Washington, D.C. 20439 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 9 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petit ioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our w ebsite at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorn ey will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	GODWIN_SHAEON_O_AT_0752_16_0209_I_1_FINAL_ORDER_1981077.pdf	2022-11-28	null	AT-0752	NP
3,901	https://www.mspb.gov/decisions/nonprecedential/WILSON_TONY_ALEXANDER_PH_0432_17_0273_I_1_FINAL_ORDER_1980242.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD TONY ALEXANDER WILSO N, Appellant, v. DEPARTMENT OF THE TR EASURY, Agency. DOCKET NUMBER PH-0432 -17-0273 -I-1 DATE: November 22, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Tony Alexander Wilson , Milford, Delaware, pro se. Byron D. Smalley , Esquire, and Mark A. Wines , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sustained his removal . For the reasons set forth below, the appellant’s petition for review is DISMISSED for lack of a substitute party . 5 C.F.R. § 1201. 35. 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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 In May 2017, the agency removed the appellant from service. Initial Appeal File (IAF), Tab 5 at 12, Tab 10 at 27 -36. The appellant filed a Board appeal, challenging that removal action. IAF, Tab 1. After developing the record, the administrative judge sustained his removal. IAF, Tab 44, Initial Decision. The appellant filed a timely petition for review , after which the agency responded , and the appellant replied . Petition for Review (PFR) File, Tab s 1, 3-4. ¶3 In July 2019, w hile the appellant’s petit ion for review was still pending, the agency filed argument and evidence that the appellant passed away. PFR File, Tab 5. Among other things, the agency argued that the appellant’s petition for review should be dismissed in the absence of a substitute pa rty. Id. at 5. The agency served this pleading electronically, consistent with the appellant’s status as an e-filer. Id. at 6; see IAF, Tab 1 at 2 . The agency also served this pleading to the appellant’s last known address, via regular mail and certifi ed mail . PFR File, Tab 5 at 6 . Nevertheless, no representative or proper party submitted a response. ¶4 The pertinent Board regulation provides that if an appellant dies or is otherwise unable to pursue the appeal, the processing of the appeal will only be completed upon substitution of a proper party. 5 C.F.R. § 1201.35 (a); see, e.g. , Estate of Kravitz v. Department of the Navy , 110 M.S.P.R. 97 , ¶ 2 n.1 (2008) (finding that substitution was proper where an appellant passed away while his appeal was pending and the appellant’s counsel submitted a motion for the widow to be a substitute party); Cole v. Department of Veterans Affairs , 77 M.S.P.R. 434, 434 n.1 (1998) (granting a motion to substitute the administrator of an appellant’s estate, where the appellant died as his petition for review was pending). The regulation further explains that the representative or prope r party must file a motion for substitution within 90 days after the death or other disabling event, except for good cause shown. 5 C.F.R. § 1201.35 (b). ¶5 Though not required under the Board’s regulations, the agency’s pleading effectively sought out a substitute party. Those efforts were unsuccessful. 3 Accordingly, we dismiss the instant petition for review for lack of a substitute party . This is the final decision of the Merit System s Protection Board regarding the appellant’s petition for review. The initial decision remains the final decision of the Board regarding the appellant’s removal . NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described b elow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicia l review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 2 Since the issuance of the initial decision in this matter, the Board may have updated the 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 Ci rcuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Pet itioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any atto rney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that s uch action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of 5 discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their res pective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 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 Opportuni ty 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 se ction 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Feder al Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation 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 for Merit Systems Protection Board appellants before the 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	WILSON_TONY_ALEXANDER_PH_0432_17_0273_I_1_FINAL_ORDER_1980242.pdf	2022-11-22	null	PH-0432	NP
3,902	https://www.mspb.gov/decisions/nonprecedential/PRATHER_TERROL_M_DC_0752_14_0327_B_1_FINAL_ORDER_1980301.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD TERROL M. PRATHER, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER DC-0752 -14-0327 -B-1 DATE: November 22, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Deano C. Ware , Redford, Michigan, for the appellant . Keith Bracey , Esquire and Judith A. Fishel , 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 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 in terpretation of statute 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or 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. Except as expressly MODIFIED to (1) VACATE the portion of the initial decision addressing the issue of retaliation for equal employment opportunity (EEO) activity; (2) construe the first and second charges as a single charge of failure to maintain a condition of employment , and sustain that charge; and ( 3) find that the agency failed to prove its third charge, we AFFIRM the initial decision. BACK GROUND ¶2 Under Department of Defense (DO D) regulations, civilian employment in the competitive service in foreign areas gen erally is limited to a period of 5 continuous years. DO D Instruction (DODI) No. 1400 -25, Volume (Vol.) 1230, ¶ 4.h.(1)2; see 10 U.S.C. § 1586 (generally authorizing the establishment of rotation programs to facilitate the interchange of civilian DOD employees between posts of duty in and outside the United States). An employee who is covered by the 5 -year limitation, and who does not have a statutory right to return to a position in the United States,3 must, as a condition of employment, agree to 2 Prather v. Department of the Army , MSPB Docket No. DC -0752 -14-0327 -I-1, Initial Appeal File (IAF), Tab 5 at 23 -35. 3 Generally, competitive service career and career -conditional employees who are employed in the United States or another nonforeign area and who accept an assignment in either a foreign area or in a nonforeign area different from the one where they are 3 register in the agency’s Pri ority Placement Program (PPP) before the end of the 5-year period or before the end of an approved extension. DODI No. 1400 -25, Vol. 1230, Enclosure (Encl.) 2, ¶ 5.a.(2). The employee also must agree that failure or refusal to register in the P PP is a basis for separation. Id., Encl. 2, ¶ 5.a.(3)(c). ¶3 The DOD PPP Handbook,4 which sets out standard operating procedures for the PPP, provides that PPP registration will be denied when the registering activity —in this case, the agency’s Civilian Personnel Advisory Center (CPAC) — has knowledge of performance or c onduct that directly and negatively affects the employee’s qualifications, eligibility, or suitability for placement. DOD PPP Handbook, chapter 3, ¶ C.16. In the case of “substantiated conduct or performance problems ,” regardless of whether formal disciplinary action is taken, eligibility will be withheld for a period of time to ensure that the necessary corrective measures have had their intended effect. Id., chapter 3, ¶ C.16.(a). Local agency policy further specifi es that when CPAC has knowledge of a conduct or performance problem, PPP registration must be withheld for a period of at least 90 days. Prather v. Department of the Army , MSPB Docket No. DC-0752 -14-0327 -I-1, Initial Appeal File (IAF), Tab 5 at 107. ¶4 On September 29, 2008, the appella nt received a career appointment to the Supervisory Food Service Operations Specialist position in Wiesbaden, Germany. IAF, Tab 5 at 22. Because the appellant was re cruited in Germany, and therefore did not have statutory ret urn rights, the agency required him to sign a Department of the Army Form 5370 -R, Rotation Agreement – Employees Recruited Locally in Foreign Areas. Id. at 36-37. The Rotation Agreement provided that his overseas assignment was limited to an initial tour and any management -initiated extension employed currently shall be granted statutory return rights. 10 U.S.C. § 1586 (b); DODI No. 1400 -25, Vol. 1230, ¶ 4.i. 4 IAF, Tab 5 at 50 -106. The PPP Handbook has since been updated, but we will refer here to the version that was in effect at the time of the events at issue in this appeal. 4 thereof, and that he did not have a right to extensions beyond the initial tour. Id. at 36. The Rotation Agreement further provided that, because he did not have return rights, he would apply for assignment to the United States under the PPP befo re completing his initial tour and any extensions thereof. Id. The appellant acknowledged that failure to comply with the “conditions of employment” described in the agreement could result in a proposal to remove him from Federal service. Id. ¶5 The appellant’s initial tour was limited to 24 months, endi ng September 28, 2010, but was sub sequently extended to September 20, 2012, and again to June 28, 2013 . Id. at 37. The agency denied his reque st for an additional extensio n, and he agreed to register for the PPP. Prather v. Department of the Army , MSPB Docket No. DC -0752 -14-0327 -B-1, Remand File (RF), Tab 26 at 10. The appellant’s PPP registration was initially delayed due to his receipt of a November 28, 2012 letter of r eprimand, which rendered him ineligible for 90 days, but he successfully registered for the PPP on March 15, 2013, before the end of his tour. IAF, Tab 5 at 48 -49, 109 -11. It is undisputed that the agency had discretion to allow him to continue in his po sition beyond the end of his tour, provided he remained registered in the PPP. IAF, Tab 34, Hearing Compact Disc (HCD), Track 1 (testimony of Human Resource Specialist). ¶6 On October 9, 2013, the appellant had a confrontation with his second -line supervisor concerning the supervisor’s instruction to keep his office door open. The following day, two coworkers who witnessed the event provided written statements relating that the appellant created a disturbance by yelling at the supervisor, and then yelling at one of the coworkers. IAF, Tab 5 at 112 -14. On October 11, 2013, a Human Resource Specialist in the Wiesbaden CPAC informed the appellant that he was being removed from the PPP “because of misconduct determined by management.” IAF, Tab 9 at 10. Subseq uently, on October 22, 2013, the same supervisor proposed to remove the appellant based on the following charges: (1) the expiration of his tour of duty; (2) his ineligibi lity 5 to remain in the PPP; and (3) his failure to abide by the terms of the Rotation Agreement. Id. at 116 -18. The proposing official explained that the appellant’s removal from the PPP “was required because of your disrespectful conduct and for causing a disturbance” on October 9, 2013. Id. at 116. The proposing official proceeded to relate his own version of the events of that day, which corresponded with the statements provided by the two coworkers. Id. at 117. The appellant submitted a written response, in which he disputed the statements by the proposing official and the two coworkers, alleged that the proposing official had initiated the argument as a pretext for removing him, and contended that he was unlawfully removed from the PPP without prior notice. Id. at 119 -36. A fter considering the appellant’s response, the deciding official sustained the proposed action, and t he appellant was removed effective December 20, 2013. Id. at 137-43. ¶7 The appellant filed a timely Board appeal, which the administrative judge initially d ismissed for lack of jurisdiction. IAF, Tab 10, Initial Decision. The full Board remanded the appeal for a jurisdictional hearing, and the administrative judge determined on remand that the Board had jurisdiction over the appellant’s removal. RF, Tabs 1 , 15. Following a hearing, the administrative judge issued an initial decision sustaining the action. RF, Tab 32, Remand Initial Decision (RID). The administrative judge sustained all three charges, found that the appellant had failed to establish an af firmative defense of retaliation for EEO activity, and further found that the removal penalty was reasonable. Id. The appellant filed the instant petition for review, to which the agency has responded. Petition for Review (PFR) File, Tabs 2, 4. On Nove mber 4, 2016, the Board issued an order directing the agency to submit additional information concerning the PPP. PFR File, Tab 5.5 The agency filed a timel y response to the Board’s order, and the appellant also responded. PFR File, Tabs 8 -9. 5 Specifically, the Board asked the agency to address the following topics: 6 ANALYSIS The appellant’s removal from the PPP is not appealable to the Board under 5 C.F.R. § 330.214 . ¶8 On review, the appellant first argues that his removal from the PPP is appealable to the Board under 5 C.F.R. § 330.214 ,6 which provides that an individual who believes that his reemploym ent rights under subpart B of 5 C.F.R. part 330 have been violated may appeal to t he Board. PFR File, Tab 2 at 7-10. Subpart B of 5 C.F.R. part 330 governs the operation of the Reemployment Priority List (RPL), which is a required component of an agency’s placement programs to assist current and former competitive -service employees who will be or were separated by reduction in force (RIF) or who have recovered from a compensable work -related injury after more than 1 year. 5 C.F.R. § 330.201 (a). Subpart B also provid es that an agency may operate an alternative placement program, approved by the Office of Personnel Management (OPM), as an exception to the RPL regulations, but this provision is limited in scope to reemployment priority because of RIF separation. 5 C.F.R. § 330.201 (d). Here, regardless of whether the PPP was approved by OPM, the appellant has not 1. What is the purpose and his torical origin of the [PPP] ? 2. Under what legal authority, statutory or otherwise, was the appellant required to maintain PPP registration as a condition of continued employment? 3. Does the agency’s implementation of the PPP, as pertinent to this case, diffe r from or expand on [DOD] PPP policy? If so, how? 4. The DOD PPP Handbook provides that, in the case of “substantiated” conduct or performance problems, eligibility for the PPP will be withheld for a period of time to ensure that the necessary corrective me asures have had their intended effect. What does the term “substantiated” mean in this context, and how does the agency measure what is/is not “substantiated”? PFR File, Tab 5. 6 The appellant cites 5 C.F.R. § 330.209 , where the Board appeal rights provision was located prior to March 3, 2011. PFR File, Tab 2 at 8 -9; see 5 C.F. R. § 330.209 (2010); 75 Fed. Reg. 67589 -01 (Nov. 3, 2010) (revising and recodifying portions of 5 C.F.R. part 330); see also Roberto v. Department of the Navy , 440 F.3d 1341 , 1350 -51 (Fed. Cir. 2006) (interpreting the predecessor regulation at 5 C.F.R. § 330.209 ). 7 alleged that the agency violated any reemployment rights arising from RIF separation or re covery from a compensable injury. Thus, we find that his challenge to the agency’s decision to remove him from the PPP is not within the Board’s jurisdiction under 5 C.F.R. § 330.214 . The administrative judge erred in adjudicating an affirmative defense of retaliation for EEO activity . ¶9 The appellant further contends on review that the administrative judge did not apply an appropriate standard of review to his “disparate treatment” claim. PFR File, Tab 2 at 10 -11. He asserts that his intent was not to raise an affirmative defense to the removal action, which he would have the burden of proving, but rather to raise a disparate penalties claim in opposition to the agency’s penalty determin ation, which is an issue on which the agency bear s the burden of proof. Id. ¶10 The record supports the appellant’s assertion. In the summary of the prehearing conference for the merits hearing, the administrative judge indicated that the appellant had raised an affirmative defense of retaliation for EEO activity. RF, Tab 3 at 3. The appellant did not file a written objection to the summary, but at the hearing, his attorney explicitly stated that he was not raising an affirmative defense to the removal action and that the appeal was not a mixed case. HCD, Track 2 at 47:00 (statement of the appellant’s attorney). Nonetheless, the administrative judge made a finding that the appellant’s removal was not the result of ret aliation for EEO activity, and provided notice of mixed -case appeal rights. RID at 10 -12, 16 -17. ¶11 We agree with the appellant that the administrative judge should not have adjudica ted an affirmative defense the appellant indicated he did not wish to purs ue. Accordingly, we vacate the portion of the initial decision addressing the issue of retaliation for EEO activity. We address the disparate penalties claim below in our discussion of the agency’s penalty determination. 8 The agency has met its burden of proof on charges (1) and (2), which we construe as a single charge of failure to maintain a condition of employment . ¶12 We find that charge (1), the expiration of the appellant’s tour of duty, and charge (2), his ineligibility to remain in the PPP, together amount to a single charge of failure to maintain a condition of employment.7 When, as in this case, a charge of failure to maintain a condition of employment is based on the employing agency’s withdrawing or revoking its certification or other approval of the employee’s fitness or other qualifications to hold his position, the Board’s authority generally extends to review of the merits of that withdrawal or revocation. Adams v. Department of the Army , 105 M.S.P.R. 50, ¶ 10 (2007), aff’d , 273 F. App’x 947 (Fed. Cir. 2008). In conducting that review, the Board determines whether, under the circumstances, the agency acted re asonably in denying the required certification or approval. See id ., ¶ 19. Th e Board has recognized a narrow exception in cases in which the adverse action is based on the withholding of a national security credential , such as a security clearance or eligibility to occupy a sensitive position. Id., ¶ 11; see Department of the Navy v. Egan , 484 U.S. 518 , 530 -31 (1988); Kaplan v. Conyers , 733 F.3d 1148 , 1166 (Fed. Cir. 2013) (en banc). This is not such a case, however. Accordingly, in order to determine whether the agency proved i ts charge, we will consider whether, under the circumstances, the agency acted reasonably in removing the appellant from the PPP. Adams , 105 M.S.P.R. 50 , ¶ 19. ¶13 As discussed above, the agency’s policy provides that “[i]n the case of substantiated conduct or performance problems,” an employee’s eligibility for the PPP will be withheld for a period of time to ensure that the necessary corrective measures have had their intended effect. DOD PPP Handbook, chapter 3, ¶ C.16(a). The PPP Handbook further explains that, for purposes of determining 7 As previously discussed, the end of the appellant’s tour of duty would not have precluded his continued employment had he remained in the PPP. Similarly, his enrollment in the PPP did not become a requirement for continued employment until his tour of duty expired. 9 PPP eligibility in accordance with that provision, “conduct problems” include the following: (1) attendance deficiencies such as recurring tardiness or unexcused absence, or abuse of sick leave; (2) conduct on or off the job that could render the employee unsuitable for Federal employment under 5 C.F.R. § 731.202 ; and (3) any other conduct that adversely affects the productivity and efficiency of the organization and could potentially require disciplinary action. DOD PPP Handbook, chapter 3, ¶ C.16(c). ¶14 We find that, under the circumstances , the agency reasonably determined that the appellan t had substantiated conduct problems that required his removal from the PPP. See IAF, Tab 9 at 10 (explaining that the appellant was being removed from the PPP “because of conduct determined by management”). In addition to the proposing official’s personal knowledge , the evidence available to the agency included two written statements , one of them sworn, by disinterested, firsthand witnesses to the October 9, 2013 incident. IAF, T ab 5 at 112 -14. Both witnesses related that the appellant created a disturbance by arguing with and yelling at the proposing official, and then yelling at one of the coworkers. Id. While the appellant attempted to identify discrepancies in their stateme nts in his response to the proposed removal, we find the two statements are consistent with each other, as well as the recollection of the proposing official. Id. at 112 -14, 117. Given the available evidence , it was reason able for the agency to conclude that the statements by the coworkers were accurate in their relevant details, and that the appellant did in fact create a workplace disturbance. Cf. Borninkhof v. Department of Justice , 5 M.S.P.R. 77 , 87 (1981) (stating that t he Board generally assesses the probative value of hearsay by considering various factors that include the availability of persons with firsthand knowl edge to testify at the hearing, whether the statements of the out -of-court declarants were sworn, whether the declarants were disint erested witnesses to the events and whether their statements were routinely made, the consistency of the out -of-court statements with other statements and evidence, whether there is corroboration or contradiction in the 10 record, and the credi bility of the out -of-court declarant). Moreover, even acce pting as true the appellant’s contention that the proposing official initiated the argument, the appellant’s admitted participation was unnecessarily disruptive, adversely affected the productivity and efficiency of the office, and could have potentially r equired at least a minor disciplinary action. We conclude that , under the circumstances present here, the agency reasonably determined that it had knowledge o f substantiated conduct problems, thus rendering the appellant ineligible for the PPP, at a time when registration in the PPP was a condition of his continued employment. See DOD PPP Handbook, chapter 3, ¶ C.16(c). Accordingly, we sustain the charge of failure to maintain a condition of employment . Charge (3) is not sustained. ¶15 We construe charge ( 3), concerning the appellant’s alleged “[f]ailure to abide by [the] terms” of the Rotation Agreement, as an alleged breach of contract. Notwithstanding its title, however, the Rotation Agreement is not contractual in nature, but rather serves a “notice fu nction, to warn prospective overseas employees of the restrictions on their employment.” Soper v. United States , 677 F.2d 869 , 872 (Ct. Cl. 1982 ). Because the Rotation Agreement was not in fact a contract, we do not sustain the charge. The removal penalty is sustained. ¶16 The appellant also argues on review that the administrative judge failed to analyze the agency’s penalty determination under the applicable Douglas factors. PFR File, Tab 2 at 12 -16; see Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305 -06 (1981) (listing 12 factors generally recognized as relevant for consideration in determining the appropriateness of a penalty). We find, however, that the penalty determination in this case is not subject to a typical Douglas factors analysis. As our reviewing court ha s explained, the Douglas mitigation analysis “reflects the general principle that penalties should be 11 proportional to misconduct.” Ryan v. Department of Homeland Security , 793 F.3d 1368 , 1372 (Fed. Cir. 2015). Consistent with that principle, the majority of the Douglas factors concern misconduct charges and have no application to adverse actions taken for other reasons, such as failure to maintain a condition of employment. Douglas , 5 M.S.P.R. at 305-06; see Munoz v. Department of Homeland Security , 121 M.S.P.R. 483 , ¶ 15 (2014 ) (holding that a “traditional” Douglas factors analysis does not apply to an adverse action based on inability to meet a condition of employment , because such an action i s not a “sanction or penalty for misconduct”). ¶17 In determining the appropriate penalty for a charge of failure to maintain a condition of employment, the Board instead considers a more limited set of factors, which generally include (1) the nature of the offense, (2) its effect on the appellant’s performance of the job, and (3) the availability and effect of alternative sanctions.8 Penland v. Department of the Interior , 115 M.S.P.R. 474 , ¶ 8 (2010). The first two considerations generally weigh in favor of removal, because an employee who does not meet the conditions of employment cannot perform his job. Id. As to the availa bility of alternative sanctions, the appellant argues that, instead of removing him, the agency could have granted an additional tour extension, thus permitting him time to correct any conduct issues and regain eligibility for the PPP. PFR File, Tab 2 at 16-17. The deciding official testified that he did consider the possibility of such an extension . HCD, Track 2 (testimony of deciding official). However, as the appellant acknowledged when he signed the Rotation Agreement, extensions are not automatic a nd not a matter of right. IAF, Tab 5 at 36. In addition , the proposing official provided 8 When an appellant is removed for failure to maintain a security clearance or eligibility to occupy a sensitive position , or for failure to complete an “up -or-out” training program, and there is no law or regulation granting the employee a substantive right to reassignment, the Board will not inquire whether reassignment is a possible alternative sanction. Munoz , 121 M.S.P.R. 483 , ¶¶ 15-16; Radcliffe v. Department of Transportation , 57 M.S.P.R. 237 , 242 (1993). This is not such a case, however. 12 unrebutted testimony that, due to a change in mission, the appellant’s position no longer needed to be filled. HCD , Track 2 (testimony of proposing official) . Under these circumstances, we find that it was not unreaso nable for the agency to remove the appellant instead of extending his tour. ¶18 Finally, we find no merit to the appellant’s claim of disparate penalties. When an employee raises a disparate penal ties claim , the proper inquiry is whether the agency knowingly treated employees who engaged in the same or similar offense differently “in a way not justified by the facts, and intentionally for reasons other than the efficiency of the service. ” Singh v. U.S. Postal Service , 2022 MSPB 15 , ¶ 14 (quoting Facer v. Department of the Air Force , 836 F.2d 535, 539 (Fed. Cir. 1988) ). Here, the appellant has not identified any employees whom he alleges were similarly situated. Consequently, his disparate penalties claim does not underc ut the agency’s showing that the removal penalty was reasonable. ¶19 Accordingly, we affirm the initial decision. NOTICE OF APPEAL RIG HTS9 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your 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 9 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 13 this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your cas e, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 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 14 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimin ation . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action in volves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other secur ity. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file 15 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C . 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial 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.10 The court of appeals must receive your 10 The original statutory provision that provided for judicial r eview of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicia l review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 16 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. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	PRATHER_TERROL_M_DC_0752_14_0327_B_1_FINAL_ORDER_1980301.pdf	2022-11-22	null	DC-0752	NP
3,903	https://www.mspb.gov/decisions/nonprecedential/BAKER_KENDALL_L_SF_0752_16_0128_I_1_FINAL_ORDER_1980314.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD KENDALL L. BAKER, Appellant, v. DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER SF-0752 -16-0128 -I-1 DATE: November 22, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Bradley R. Marshall , Charleston, South Carolina, for the appellant. Douglas W. Frison , Esquire and Jonathan A. Beyer , APO , AP, 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 . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous f indings 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 to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order 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 t he 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 appea l, 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 At the time of the action under review, the appellant occupied the competitive -service position of GS -4 Office Attendance Clerk at a high school in Okinawa, Ja pan. Initial Appeal File (IAF), Tab 6 at 31. He first became employed with the Department of Defense Education Activity (DODEA) of the Department of Defense Dependent Schools (DODDS) in 1999 when he was hired locally, and he began working at the high sch ool in 2005. Id. at 34 -36. His initial overseas appointment was pursuant to 10 U.S.C. § 1586 (Rotation of Career -Conditional and Career Employees Assigned D uty Outside of the United States); Dep artment of Defense Administrative Instruction (DOD AI) § 1400.25; and DODEA Administrative Instruction (DODEA AI) § 5666.01, Five -Year Limi tation on Competitive Employment in Foreign Areas. Id. at 97-138. Individuals appointed under these provisions are employed overseas on a rotational basis for up to 5 years , although a maximum of 2 additional years may be granted under limited circumstances where management determines that there exists a potential disruption to the continuity of essential operations. Id. at 97-98, 126. Additionally, a one -time extension of 6 months or less may be 3 granted for compassionate or personal reasons relating to the employee’s particular circumstances. Id. at 104. ¶3 In settlement of a 2012 equal employment opportunity (EEO) com plaint , the appellant and management agreed that his current tour would be extended for 2 additional years, until November 20, 2015. IAF, Tab 45 at 7 -9. On April 29, 2015, the appellant’s school principal was notified that the appellant’s tour would expire and that she needed to determine whether she wished to extend it. IAF, Tab 6 at 96. On May 7, 2015, she indicated that she would not do so, id. at 95, and the following day she notified the appellant o f that decision and his options; specifically , tha t, having no return rig hts to a position in the United States, he could register in the agency’s Priority Placement Program (PPP) to secure a return assignment in the United States , or he could resign. Id. at 94. The appellant agreed to register in the PPP, id., but he also, in early May 2015, requested a 2-year extension of his tour for “humanitarian reasons” explaining that his 14 -year old son , diagnosed with leukemia in 2013 , was undergoing maintenance treatment at a Japanese hospital, and that it would be a great financial burden on the appellant and his family if he were required to transfer. IAF, Tab 44 at 9 -12. In support of his request, t he appellant provided a medical report from his son’s physician which , after a period of time, was translated from Japanese to English. Id. at 23 -25. The Okinawa District Superintendent forwarded the information to the DODDS Director of the Pacific, i ndicating that he favored g ranting the appellant’s request . Id. at 14 -18. ¶4 On September 22, 2015, the agency notified the appellant that a “position match” had been found for him under the PPP , that of a GS -4 Office Automation Clerk with the Department of the Navy in Orlando, Florida. IAF, Tab 6 at 58 -66. He was advised that he had to accept or decline the offer no later than close of business on Friday, September 25, 2015, and that, if he declined or failed to respond, he would be removed from the PPP and could be terminated for failure to comply with the DOD rotation policy . Id. at 59. On September 24, 2015, the 4 appellant asked the Acting Director of DODDS for additional time to decide on the job offer because the agency had not yet answer ed his extension request. IAF, Tab 44 at 26. On September 28, 2015, the Acting Director denied the appellant’s request for a 2 -year extension of his tour, citing provisions of the DOD AI and the DODEA AI , which provide for such extensions based only on mission needs . IAF, Tab 6 at 56. She reminded the appellant that he had a current job offer that he needed to accept or decline “immediately” and that, if he did not accept it, action would be taken to terminate his employment effective November 20, 2015, the end of his tour. Id. On September 29, 2015, the appellant requested a 6-mon th extension based on his son’s ongoing medical treatment and to allow him to complete the current school year. IAF, Tab 44 at 28. The Acting Director denied that request as well , given that that the son’s condition was chronic . Id. ¶5 On October 1, 2015, the appellant’s principal proposed his remo val for nondisciplinary reasons; namely, his failure to accept a valid PPP job offer. IAF, Tab 6 at 51 -52. After he replied orally and in writing, id., at 35 -50, the Superintendent issued a letter of decision, finding the charge sustained , warranting the appellant’s removal to promote the efficiency of the service, effective November 20, 2015 . Id. at 31-34. ¶6 On appeal to the Board , the appellant alleged that the agency subjected him to “disparate treatment and hostile work environment discrimination and retaliation,” IAF, Tab 1 at 17, and violated his right to constitutional due process. Id. at 18 -20. As the record developed , he expanded his claims to include discrimination based on race, age, sex, and disability, retaliation for engaging in EEO activity and protected whistleblowing activity, violation of due process and harmful procedural error. IAF, Tabs 39, 46. Following a he aring, the administrative judge issued an initial decision in which she first found that the agency proved that the appellant failed to accept a valid job offer and that therefore the charge was sustained. IAF, Tab 57, Initial Decision (ID) at 7 -10. In this regard, the administrative judge found that, in the absence of a business 5 reason for doing so,2 the agency was not required to grant a 2 -year ex tension , noting that, when the proposal notice was issued, the appellant already had worked in his overseas rotational positon for more than 14 years. ID at 8. The administrative judge further found that, although the agency could have granted the appellant’s request for a 6 -month extension, it was not required to , and, in any event, it provided legitimate rea sons for not doing so ; namely , that his son’s condition was not acute. ID at 8 -9. Addressing the appellant’s claim that the agency delayed in answering his 2 -year extension request , the administrative judge found that the appellant still could have accep ted the offer even after his extension request was denied, but that he did not do so. ID at 9. Finally, the administrative judge considered, but rejected, the appellant’s claim that the offer made to him under the PPP was in valid. ID at 9 -10. ¶7 The admini strative judge also considered the evidence the appellant offered in support of his claim that the agency discri minated against him on the base of his race, age, and sex, and that it retaliated against him for his EEO activity, but found that he did not es tablish these claims. ID at 10 -13. The administrative judge further found that , although the appellant was disabled by a torn meniscus , back , shoulder impairments, and was a qualified individ ual with a disability, the agency had articulated a nondiscrimi natory reason for the action, and that, weighing all the evidence, the appellant did not meet his overall burden of proving discrimination. ID at 14-17. Concerning the appellant’s allegation of whistleblowing retaliation , the administrative judge found that his 2012 claim that the agency had forged his signature was a protected disclosure that he reasonably believed evidenced a viol ation of law, rule , or regulation , and that he was removed within a period of time such tha t a reasonable person could conclude 2 The agency relied on the appellant’s supervisor’s determination that his GS -4 position was not a hard -to-fill position in that it could have been easily filled by a service member’s family member. Hearing Compact Disc 1 (testimonies of the Acting Director of DODDS and the Human Resources Chief ). 6 that the disclosure was a contributing factor , but that the agency showed by clear and convincing evidence that it would have removed him in the absence of the disclosure. ID at 17 -19. ¶8 The administrative judge next add ressed the appellant’s claim that he was not provided a meaningful opportunity to respond because the deciding official lacked the decision -making authority to mak e a decision other than removal and consider ed ex parte information , and that the deciding of ficial was biased, but she found that the appellant failed to establish a denial of due process as to these claim s. ID at 19 -22, 24. The administrative judge consider ed, moreover, whether the agency committed harmful procedural error regarding the reques ted extensions of the appellant’s tour but found no rule or regulation that required the agency to grant such requests under these circumstances. ID at 22 -24. ¶9 Finally, finding that the agency showed that a nexus existed between the appellant’s failure to accept the job offer and the effi ciency of the service, ID at 24-25, and that removal was a reasonable penalty for the sustained charge, ID at 25-26, the administrative judge sustained the agency’s action . ID at 1, 26. ¶10 The appellant has filed a petition f or review, Petition for Review (PFR) File, Tab 3 , to which t he agency has responded in opposition, PFR File, Tab 5, and the appellant has filed a reply, PFR File, Tab 6. ANALYLSIS ¶11 On review, the appellant claims that the administrative judge erred in finding that he did not establish his claims of denial of due process and harmful error.3 PFR File, Tab 3 at 13-17. We first address his due process claim. An agency’s failure to provide a tenured public employee with an opportunity to present a respons e, either in person or in writing, to an appealable agency action 3 The appellant does not challenge on review the administrative judge’s findings on the merits of the charge, or her findings on the appellant’s c laims of discrimination and retaliation. We discern no basis upon which to reverse those findings. 7 that deprives him of his property right in employment constitutes an abridgement of his constitutional right to minimum due process of law, i.e., prior notice a nd an opportunity to respond. Cleveland Boar d of Education v. Loudermill , 470 U.S. 532, 546 (1985). However, d ue process is a flexible concept that calls for such procedural protections as the particular situation demands. See, e.g. , Gajdos v. Department of the Army , 121 M.S.P.R. 361, ¶ 18 (2014). It does not require that the deciding official have unfettered discretion to take any action he or she believes is appropriate upon considering the proposed adverse action. See Rodgers v. Department of the Navy , 122 M.S.P.R. 559, ¶ 6 (2015); Putnam v. Department of Homeland Security , 121 M.S.P.R. 532, ¶ 13 (2014); see also Buelna v. Department of Homeland Security , 121 M.S.P.R. 262 , ¶ 27 (2014) (stating that due process does not demand that the deciding official consider alternatives that are p rohibited, impractical, or outside of management’s purview) .4 ¶12 In support of his claim that he was denied due process, t he appellant argues on review , as he did below, that he was not provided a meaningful opportunity to respond because the deciding officia l had no choice but to remove him, and that he, the appellant, was a loyal and devoted employee. PFR File, Tab 3 at 15. The deciding official testified that, faced with a “tough” decision, he contacted the Human Resources (HR) Chief and the Office of Gen eral Counsel (OGC) to find out whether there were any alterna tives to removal, but was advised that , pursuant to the pertinent provisions of the DOD AI and the DODEA AI, IAF, Tab 6 at 133, there were none because the appellant had failed to respond to the one valid job offer under the PPP to which he w as entitled . Hearing Compact Disc ( HCD ) 1 (testimony of the deciding official ). While it is true that the deciding official lacked the authority to grant an extension of the appellant’s tour, IAF, Tab 6 4 Although these Board cases arose in the context of a G overnment -wide furlough, 5 U.S.C. § 7512 (5), the due process concepts cited therein remain applicable in the case of a removal, 5 U.S.C. § 7512 (1). 8 at 110, the deciding official possessed sufficient decision -making authority in the context of this removal action to satisfy the appellant’s right to due process. Cf. Gajdos , 121 M.S.P.R. 361, ¶¶ 20-23, 25 ( finding that the procedures used by the agency did not deprive the appellant of constitutional due process even whe n the deciding official’s discretion to invoke alternatives to the furlough was limited); Putnam , 121 M.S.P.R. 532 , ¶ 12 (finding that the right to due process is not violated by a deciding official’s limited authority to select a penalty other than the proposed indefinite suspension for the revocation of a sec urity clearance). ¶13 In further support of his claim that he was denied due process, the appellant also argues on review , as he did below , that, by his contacts with the HR Chief and representatives of the OGC that were not shared with the appellant , the deciding official considered new and material information that he obtained ex parte. PFR File, Tab 3 at 15 -17. However, e x parte informa tion only violates an employee’s right to due process when it introduces new and material information to the deciding official. Ward v. U.S. Postal Service , 634 F.3d 1274 , 1279 (Fed. Cir. 2011); Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368 , 1377 (Fed. Cir. 1999). To de termine whether the deciding official’s consideration of this ex parte information constituted a due process violation, the inquiry is whether the information is so substantial and so likely to cause prejudice that no employee can fairly be required to be subjected to a deprivation of property under such circumstances, and the Board will c onsider, among other factors: (1) whether the ex parte information merely introduces “cumulative information” or new information; (2) whether the employee knew of the information and had a chance to respond to it; and (3) whether the ex parte information was of the type likely to result in undue pressure upon the deciding official to rule in a particular manner. Ward , 634 F.3d at 1279; Stone , 179 F.3d at 1377 . ¶14 The information from the HR Chief and the OGC that th e deciding official received in response to his question as to whether there were any alternatives to 9 the appellant’s removal, given that h is tour was due to end , not having been extended, and that he had received a valid job offer under the PPP to which he had failed to respond , was that there were no alternatives . HCD 1 (testimonies of the HR Chief and the deciding official ). This information regarding the implications of the appellant’s action or ina ction was not new , but rather cumulative, because it was explained to him in the various notices he received from the agency , including the proposal notice, and because it was part of the DOD AI and DODEA AI, agency or ders to which the appellant was subjec ted during his lengthy tour in Japan and of which he was aware . Moreover, the information did not result in undue pressure upon the deciding official to rule in a particular manner; rather, it confirmed that, under the particular circumstances presented, he had no choice but to uphold the proposed action. We find, therefore, that the appellant has not shown that the administrative judge erred in rejecting as unsupported the appellant’s claim that the agency denied him due process. ¶15 We now address the appellant’s claim of harmful error. To show harmful procedural error, an appellant must prove t hat the agency committed an error 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. § 1201.56 (c)(3) ; Pumphrey v. Department of Defense , 122 M.S.P.R. 186, ¶ 10 (2015). Here, the appellant argues that the agency erred by requiring him to respond to the job offer while his request for an extension of his tour was pending because its policy is to suspend the PPP process until a decision has been made o n an employee’s extens ion request for which his supervisors have indicated support. PFR File, Tab 3 at 9, 14 -15. Although the appellant argues that various agency officials testified that such a policy exists, their actual testimony was regarding a hypothetical situation, not the situation presented here. HCD 1 (testimony of the HR Chief ); HCD 2 (testimonies of the DODDS Director o f the Pacific and the HR Specialist ). Neither the DOD AI nor 10 the DODEA AI support s the appellant’s claim that the agency had such an official policy. IAF, Tab 6 at 97-138. Moreover, at the outset, the appellant’s supervisor specifically recommended against granting an extension of the appellant’s tour. Id. at 95. Even if t he agency had such a policy, the appellant has failed to show how the result in this case would have been different. I n fact, after the agency advised him that the Acting Director had denie d his request s for a 2 -year extension and a 6 -month extension, he still fail ed to accept the agency’s offer which was the basis for his removal. Any speculation on the appellant ’s behalf as to how the result before the agency might have been different is insufficient to establish har m. Stephen v. Department of the Air Force , 47 M.S.P.R. 672 , 682 -83 (1991) (noting that an appellant must provide proof of actual harm resulting from an agency procedural error, which r equires more than the possibility that the same evidence presented to the Board might have been viewed differently by the agency). We find therefore that the appellant failed to prove that the administrative judge erred in denying his claim of harmful pro cedural error.5 NOTICE OF APPEAL RIG HTS6 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which 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 5 The appellant does not challenge on review the administrative judge’s findings regarding nexus and the reasonableness of the penalty. We discern no basis upon which to disturb those findings. 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 in dicated in the notice, the Board cannot advise which option is most appropriate in any matter. 11 jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition f or review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practi ce, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono repr esentation for Merit Systems Protection Board appellants before the Federal Circuit. The 12 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after yo u receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or o ther security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed th rough the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you recei ve this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file 13 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Was hington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5 SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no ch allenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.7 The court of appeals must receive your 7 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 14 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “G uide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit , you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor war rants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	BAKER_KENDALL_L_SF_0752_16_0128_I_1_FINAL_ORDER_1980314.pdf	2022-11-22	null	SF-0752	NP
3,904	https://www.mspb.gov/decisions/nonprecedential/BENNETT_WILLIAM_C_DE_1221_15_0461_W_1_FINAL_ORDER_1979725.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD WILLIAM C. BENNETT, JR., Appellant, v. DEPARTMENT OF AGRICU LTURE, Agency. DOCKET NUMBER DE-1221 -15-0461 -W-1 DATE: November 21, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 William C. Bennett, Jr. , Union, South Carolina, pro se. Christopher H. Bonk , Esquire and Kevin L. Owen , Esquire, Silver Spring, Maryland, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which denied his request for corrective action . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous 1A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 interpretation of statute or regulation or the erroneou s application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error af fected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not esta blished 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 initial decision’s analysis of the clear and convincing evidence test, we AFFIRM the ini tial decision. BACKGROUND ¶2 The appellant is employed by th e agency as a GS -9 Air Tanker Base Manage r in West Yellowstone, Montana. Initial Appeal File (IAF), Tab 9 at 6. On January 28, 2015, the Fire Center Base Manager (Base Manager)2 informed his crew, which included the appellant , that the base was under scr utiny for closure after the 2015 fire season due to the lack of infrastructure maintenance over the course of many years. The Base Manager asked the crew to provide him with “input and ideas” concerning possible ways to avoid a closure. IAF, Tab 1 at 5, Tab 39 at 51. In response, on February 3, 2015, the appellant provided a 4-page opinion that alleged , among other things , that an arsenic water filter should have been installed at the base in 2012 when it was discovered that the well water contained over the maximum containment level of arsenic established by the Envir onmental Protection Agency , and the base should have maintained 2 The job titles of the appellant and his supervisor are similar. To differentiate, when we refer to the appellant’ supervisor, we will use the title “Base Manager” and when we refer to the ap pellant’s position, we will use the titl e “Air Tanker Base Manager .” 3 the tarmac and ramp used by airplanes that carried smoke jumpers3 to and from fires and failed to resubmit funding requests fo r maintenance issues, such as repairing the ramp, “as required.” IAF, Tab 13 at 6-11. Nine days later, the Base Manager informed the appellant that he would no longer be allowed to jump or to participate in smoke jumper refresher training as a collateral duty because smoke jumping was not in the position description of the Air Tanker Base Manager position to which the appellant had been promoted. ¶3 Thereafter, the appellant filed an individual right of action (IRA) appeal to the Board alleging that the Ba se Manager took away his smoke jumping duties in retaliation for the protected disclosures that he made in his 4-page opinion. IAF, Tab 1. After conducting a hearing,4 the administrative judge issued an initial decision, which found that the appellant no nfrivolously alleged that he made two protected disclosures in the 4-page opinion that were contributing factors in a personnel action (the agency’s rescission of his smoke jumper duties) and that he had exhausted his administrative remedies before the Off ice of Special Counsel as to those disclosures and that personnel action. IAF, Tab 50, Initial Decision (ID) at 2 n.3. Thus, the administrative judge found that the appellant made a nonfrivolous allegation that the Boar d has jurisdiction over his IRA appeal. ¶4 The administrative judge found further that the appellant established by preponderant evidence that his disclosure regarding arsenic levels in the well water reasonably asserted a violation of law, rule, or regulation, or a substantial and specific danger to public health or safety and thus was a protected disclosure under the Whistleblower Protection Enhancement Act of 2012 (WPEA). ID at 4-5. He also found that the appellant established by preponderant evidence that 3 Smoke jumpers parachute into remote areas to combat wildfires. U.S. Department of Agriculture, Forest Service, Smokejumpers , https://www.fs.usda.gov/science - technology/fire/people/smokejumpers (last visited Nov. 21, 2022 ). 4 The he aring lasted 2 days, from May 24-25, 2016. We cite to the hearing transcript for the first day as “HT1” and for the second day as “HT2.” A copy of the transcript for both days is contained in the rec ord. 4 his disclosure that the ramp ma intenance funding request had not been resubmitted as required constituted an allegation of a violation of law, rule, or regulation, which also raised the specter of a substantial and specific danger to public health or safety, and thus was a protected dis closure under the WPEA. ID at 5. Additionally, the administrative judge found that, under the knowledge/timing test, the appellant established by preponderant evidence that his disclosures were a contributing factor to having the smoke jumping collateral duty rescinded from his overall duties. ID at 5-6. According to the administrative judge, the agency’s rescinding the appellant’s smoke jumping duties was a personnel action because it constituted an action concerning education or training that could be reasonably expected to lead to an appointment, a promotion, or a performance evaluation,5 and also was a significant change in the appellant’s duties, responsibilities, and/ or working conditions. ID at 5. The administrative judge, however, determined th at the agency showed by clear and convincing evidence that it would have taken the same action in the absence of the appellant’s protected disclosures . ID at 7-15. ¶5 In his petition for review, the appellant contests the administrative judge’s findings of fact and credibility determinations. For instance, he contends that the administrative judge failed to consider that the Base Manager “lied under oath.” Petition for Review (PFR) File, Tab 1 at 6-7. He further argues that the testimony of the Base Mana ger and an Employee Relations Specialist concerning telephone conversations that they said that they had about the appellant’s smoke jumping duties should be discounted because of its hearsay nature. Id. at 9. The appellant also contends that the adminis trative judge, in finding that the agency proved by clear and convincing evidence that it would have rescinded the appellant’s smoke 5 Some evidence in the record suggests that smoke jumpers require a significant amount of costly training each year to keep them current. HT2 at 7 (testimony of the interim supervisor), 40 (testimony of the Base Manager). In his closing argument, the appe llant acknowledged that training for most individuals might cost thousands of dollars, but he stated that his training costs were minimal. IAF, Tab 49 at 12. 5 jumping duties absent his whistleblowing, erred by not considering his testimony rebutting the agency’s evidence on that is sue. Id. at 7-8. Finally, he argues that the administrative judge was biased against him. Id. at 11. DISCUSSION OF ARGUME NTS ON REVIEW ¶6 After establishing the Board’s jurisdiction in an IRA appeal, which the appellant has done here beyond dispute , he must then establish a prima facie case of whistleblower retaliation by proving by preponderant evidence that he made a protected disclosure under 5 U.S.C. § 2302 (b)(8) or engaged in protected activity under 5 U.S.C. § 2302 (b)(9) that was a contributing factor in a personnel action taken against him. 5 U.S.C. § 1221 (e)(1); Soto v. Department of Veterans Affairs , 2022 MSPB 6 , ¶ 6 (2022) . If the appellant makes out a prima facie case, the agency must prove, by clea r and convincing evidence, that it would have taken the same personnel action in the absence of the protected disclosure or protected activity. 5 U.S.C. § 1221 (e)(1) -(2); Soto , 2022 MSPB 6 , ¶ 6. ¶7 As noted above, the administrative judge found that the appellant made two protected disclosures of either a violation of law, rule, or regulation, or of a substantial and specific danger to public health or safety , and that both protected disclosures were contributing factors to the rescission of h is smoke jumping duties. ID at 4-6. Based on our review of the record and the fac t that these findings are not challenged on review, we di scern no reason to disturb them .6 6 On review, the appellant challenges the administrative judge’s discussion of one of the point s he raised in his 4 -page opinion, which has been characterized as the “dorm incident” and concerns a spring 2015 inspection that revealed the presence of asbestos. PFR File, Tab 1 at 9-10; IAF, Tab 13 at 7. The administrative judge discussed this issue in his clear and convincing evidence analysis and concluded that, because the purported “disclosure” occurred after the agency took the personnel action and because agency officials did not have knowledge of any asbestos issues prior to rescinding the appe llant’s smoke jumping collateral duties, the incident could not have triggered a motive to retaliate, which is a factor to consider when determining whether the agency met its clear and convincing burden. ID at 13-14. However, we believe that that discus sion is misplaced because knowledge of a disclosure or activity and the timing of the personnel action in question are properly addressed in a contributing factor analysis 6 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 appropriat e inferences, and made reasoned conclusions) . ¶8 Because the appellant established a prima facie c ase of whistleblower reprisal, the relevant inquiry is whether the agency proved, by clear and convincing evidence, that it would have taken the same action even in the absence of the disclosu res. Soto , 2022 MSPB 6 , ¶ 18. The Board considers the following factors (“Carr factors”) in determining whether an agency has meet its clear and convin cing burden : (1) the strength of the agency’s evidenc e in support of the action; (2) the existence and strength of any motive to retaliate on the part of the agency officials who were in volved in the decision; and (3) any evidence that the agency takes si milar actions against employees who are not whistleblowers but who are otherwise similarly situated. Soto , 2022 MSPB 6 , ¶ 11; see also Carr v. Social Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999 ). The appellant’s petition for review largely challenges the administrative judge’s evidentiary analysis, factual findings, and credibility determinations related to these factors . PFR File, Tab 1. However, as discussed below, we find that none of his challenges warrant s a different outcome than that arrived at by the administrative judge . as a part of an appellant’s prima facie case. Mastr ullo v. Department of Labor , 123 M.S.P.R. 110 , ¶ 18 (2015) . Moreover, the administrative judge did not find that the appellant made a protected disclosure re garding the “dorm incident,” ID at 13, and, regardless, even if he had, the Board has held that a disclosure or activity that occurs after a personnel action is taken , such is the case here, cannot be a contributing factor to that action . Mason v. Department of Homeland Security , 116 M.S.P.R. 135 , ¶ 27 (2011 ). Further, no one, including the appellant, testified at the hearing of being aware of asbestos in the damaged dormitory until after the Base Manager rescinded the appellant’s smoke jumping duties. E.g., HT2 at 56-57 (testimony of the Base Manager). Thus, the purported disclosure, even if found to be protected, could not have been a contributing factor to the agency’s rescission of the appellant’s smoke jumping duties. The appellant’s arguments on review in this regard do not provide a basis to disturb the initial decision. 7 The administrative judge properly analyzed Carr factor 1: the strength of the agency’s evidence in support of its action . ¶9 In discussing the first Carr factor, the administrative judge provided a nearly 5 -page discussion of the testimony from three of the appellant’ s supervisors who testified collectively regarding the absence of smoke jumping duties from the appellant’ s position description, the concerns surroundin g his ongoing smoke jumping witho ut it being a duty assigned to him, and the decision -making process behind the decision to end that collateral duty . ID at 7-11. The administrative judge credited this testimony and gave significant weight to this factor. Id. Specifically, he credited the testimony of the appellant’s former supervisor, who said that the appellant had been a smoke jumper before he was promoted to an Air Tanker Base Manager position —a position that di d not include smoke jumping duties —and that he had been allowed to smoke jump for a time after his promotion to that position because his duties at the base could be covered by others. ID at 8-9. He also credited the testimony of the appellant’s interim supervisor, who explained that he did not rescind the appellant’s smoke jumping duties before the arrival of the new Base Manager because he believed that a decision on the appellant continuing to serve a s a smoke jumper should be made by the permanent Bas e Manager. ID at 9. Additionally, the administrative judge credited the testimony that the Base Manager’s decision to rescind the appellant’s smoke jumping duties was made befor e the appellant submitted his 4 -page opinion. ID at 11. The Base Manager postponed acting on the decision for the 2014 fire season because resources already had been spent getting the appellant trained and ready to smoke jump for that fire season, and the Base Manager timed his action to avoid the expense of recertifying the appe llant for the upcoming 2015 fire season. ID at 9-11. Further, the Base Manager, after discussing the matter with his supervisor, wanted to confirm what he should do with an agency Employee Relations Specialist, based in part on the Base Manager’s supervi sor’s advice that he do so. ID at 10-11. 8 Based on the foregoing, the administrative judge found that the agency met its burden by presenting overwhelming credible evidence in support of the personnel action to rescind the appellant’s collateral smoke jum per training and duties. ID at 7. ¶10 On review, the appellant challenges the administrative judge’s discussion of portions of the testimony. Specifically, he argues that the administrative judge failed to consider that the Base Manager contradicted himsel f when he said, at one point, that a written policy required that smoke jumping duties be part of the appellant’s position description, whereas he later said that there is no written policy stating that, to be able to perform smoke jumper duties, it must b e included in a position description. Hearing Transcript 2 (May 25, 2016) (HT2 ) at 96-97 (testimony of the Base Manager). This testimony relates to whether the Base Manager properly denied smoke jumper duties to employees whose position description did not include such duties. The Base Manager, in his testimony, clarified that the Inter -Agency Smokejumper Operating Guide addresses the annual requirements necessary for smoke jumpers, even though there is no particular language in the Guide directly linkin g qualifications or certifications for smoke jumpers to a position description. He explained that an agency policy existed, which he could not cite specifically, which states “that a posi tion description needs to be 80 percent accurate to be valid.” He n oted that, if the appellant were allowed to smoke jump, he would not be allowed to do that duty enough for it to be valid for his position descri ption. HT2 at 96-99 (testimony of the Base Manager). The Base Manager also explained that allowing certain employees , such as the appellant , to engage in the risky activity of smoke jumping could expose the Government, the agency, and the employees to liability, given that the employees would be working duties not covered under their position descriptions. Likewise, he worried that the appellant could have a mid-air collision during a smoke jump, which could end in tragedy. HT2 at 99-100 (testimony of the Base Manager). W e find that the Base Manager’s 9 various explanations are not inherently inconsistent, as suggested by the appellant. In any event, we find that the appellant mistakenly asserts that the administrative judge did not consider the Base Manager’s varying expla nations on this matter; in fact, the administrative judge explicitly noted the diff erences at the hearing. HT2 at 98-99 (comment by the administrative judge). ¶11 Contrary to the appellant’s assertion, the record does not support a finding that the Base Man ager was not truthful in testifying about whether smoke jumping duties were tied to an employee’s position description. Rather, the record supports the administrative judge’s finding that the Base Manager testified credibly that one of the fundamental rea sons he did not allow the appellant to continue his smoke jumping duties was the absence of such duties from his position description. The Board defers to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on observing the demeanor of witnesses testifying at a hearing; the Board may overturn such determinations only when it has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) . The appellant has not presented sufficiently sound reasons to overturn the administrative judge’s credibility determinations. ¶12 The appellant also objects to the testimony of the Base Manager and an Employee Relations Specialist, who both confirmed that they discussed over the telephone the possibility of rescinding the appellant’s smoke jumping duties before he made his disclosures, given the testimony’s supposed hearsay nature. PFR File, Tab 1 at 10. We disagree with the appellant that this testimony constituted hearsay evidence. Pursuant to the Federal Rule of Evidence, 801(c), hearsay is a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted. See Taylor v. U.S. Postal Service , 75 M.S.P.R. 322, 325 (1997); Fed. R. Evid. 801(c). Here, b oth witnesses, who testified under oath, had firsthand knowledge of these telephone conversations because they participated in them and related what they 10 recalled about those conversations. Further, the recor d does not indicate that the statements offered into evidence were made by anybody other than the declarant s. As such, we consider these statements to be direct testimony and believe that the administrative judge gave them the appropriate evidentiary weig ht. Accordingly, the appellant’s argume nt regarding hearsay is without merit.7 ¶13 The appellant contends, moreover, that the administrative judge ignored or did not consider his testimony rebutting the agency’s evidence regarding why the agency rescinded h is smoke jumping duties. However , the administrative judge’s failure to mention all of the evidence of record does not mean that he did not consider it in reaching his decision. 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) . Therefore, the appellant’s argument in this regard is also without merit. Based on the foregoing, we discern no reason to disturb the administrative judge’s analysis of the first Carr factor and agree that the agency presented strong evidence in support of its decision. The administrative judge properly analyzed Carr factor 2: the existence and strength of any motive to retaliate on the part of the agency off icials who were involved in the decision. ¶14 In discussing the second Carr factor, the administrative judge considered testimony from the Base Manager, who testified that he was indifferent to the appellant’s disclosures, that the disclosures were provided in response to his own request, and that the appellant had some good ideas but none were particularly noteworthy . ID at 11. T he administrative judge also considered that the B ase Manager’s testimony and “perspective” were consistent with the agency’s response to the health and safety issues raised by the appellant in his disclosures. Id. After considering and crediting the relevant testimony, the admin istrative 7 In any event, hearsay is admissible in Board p roceedings and its probative value depends on the circumstances of each case. Borninkhof v. Department of Justice , 5 M.S.P.R. 77 , 83-87 (1981). 11 judge properly concluded, ID at 11-14, that the agency may have had some motive to retaliate based on the appellant’s submission of his 4 -page opinion criticizing the agency’s handling of safety issues and its decision to defer certain maintenance issues, cf. 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 criticism reflect ing on them both in thei r capacity as managers and employees is sufficient to establish a substantial retaliatory motive). Under the circumstances, we agree with the administrative judge that any motive to retaliate was not very significant . ¶15 Moreover, a lthough the appellant appears to challenge th e findings regarding th is factor by disputing the administrative judge’s discussion of a “dorm incident,” PFR File, Tab 1 at 9; ID at 13-14, we find that discussion to be more relevant to a contributing factor analysis as a part of the appellant’s prima facie case, a s discussed in footnote 6. Therefore, the appellant’s arguments on review do not provide a basis to disturb the initial decision with regard to this factor. We clarify that the burden of proof for Carr factor 3 , any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated, is on the agency and not on the appellant . ¶16 In the initial decision, the administrative judge concluded that that “the appellant failed to provide credible evi dence” that the agency took similar actions against employees who were not whistleblowers but who were otherwise similarly situated. ID at 14. The U.S. Court of Appeals for the Federal Circuit has recently reiterated that “the agency need not produce evidence with regard to each of the factors, nor must each factor weigh in favor of the agency for [it] to carry its burden ,” Rickel v. Department of the Navy , 31 F.4th 1358 , 1366 (Fed. Cir. 2022) , but r egardless of whether evidence is produced , the burden remains with 12 the agency .8 Accordingly, we clarify the initial decision that the burden was not the appellant’s . Id. ¶17 The administrative judge does appear to have considered some of the agency’s evidence on this point when he discussed the Base Manager’s testimony that, when smoke jumping was not in an employee’s position description , he was consistent about denying the employee the opportunity to smoke jump and that he otherwise allowed safety officers to smoke jump when it was included in the position description, but not when such employees were on detail to a position that did not include those duties. ID at 14. However, it does not appear that the agency provided any more specifically relevant evidence regarding this factor , such as testimony regarding w hether there were any similarly situated employees who were not whistleblowers but engaged in similar conduct . The Board has held that, when the agency fails to introduce relevant comparator evidence, the third Carr factor cannot weigh in favor of the agency.9 Soto , 2022 MSPB 6 , ¶ 18. 8 Historically, the Board has been bound by the precedent of 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). We are aware of no other circuit courts which have considered this issue. 9 Although we find that the third Carr factor does not weigh in favor of the agency, we nonetheless address t he appellant ’s argument on review that the administrative judge failed to consider the evidence and testimony that other employees who previously encumbered the Air Tanker Base Manager position were allowed to smoke jump. PFR File, Tab 1 at 10. This argument provides no basis to reverse the administrative judge’s finding that one of the fundamental reasons the agency denied the appella nt’s smoke jumping duties was the absence of such duties f rom his position description. As discussed above, t he agency presented sufficient rationale to justify why it took this action, including that it was limiting other employees to the duties outlined in their position descriptions as well. In addition, there is no evidence showing that other employees with collateral smoke jumper duties worked under the same position description as the appellant did, especially in light of the fact that he testified that his 13 ¶18 Nonetheless, the Board does not view the Carr factors as discrete elements, each of which the agency must prove by clear and convincing evidence, but rather weighs the factors to determine whether the evidence is clear and convincing as a whole. See Soto , 2022 MSPB 6 , ¶ 13. On the whole, we find that the strength of the agency’s evidence in support of the action outweighs the very slight evidence of motive to retaliate on the part of the agency official s involved in the action and the dearth of evidence regarding how the agency treats similarly situated employees who were not whistleblowers. As such, we ultimately agree with the administrative judge’ s conclusion that the agency proved by clear and convincing evidence that it would have rescinded the appellant’s base jumping collateral duties even in the absence of his disclosure s. The appellant failed to show th at the administrative judge was biased . ¶19 Finally, the appellant asserts that the administrative judge was biased against him because the initial decision disregarded much of his evidence and arguments. We disagree. In making a claim of bias or prejudice against an administrative judge, a pa rty must overcome the presumption of honesty and integrity that accompanies administrative adjudicators . Oliver v. Department of Transportation , 1 M.S.P.R. 382 , 386 (1980). The appellant’s allegations on review, which do not relate to any extrajudicial conduct by the administrative judge, neither overcome the presumption of honesty and integrity that accompanies an administr ative judge nor establish that he showed a deep -seated favoritism or antagonism that would make fair judgment impossible . Scoggin s v. Department of the Army , 123 M.S.P.R. 592 , ¶ 19 (2016). In any event, based on our review, we find that the administrative judge provided specific in stances in his initial decision in which he clearly cited to and relied upon the appell ant’s evidence and testimony. position may have been reclassified in 201 2. HT1 (May 24, 2016) at 52 (testimony of the appellant). 14 ¶20 Accordingly, we affirm the administrative judge’s decision to deny the appe llant’s request for c orrective action. 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 describ ed below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one appli es to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 10 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which op tion is most appropriate in any matter. 15 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, t hen you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of 16 discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at th eir respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative i n this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office 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 17 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.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 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 11 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent j urisdiction e xpired on December 27, 2017. The All Circuit Review Act, signed in to law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 18 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case . Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/Cour tWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	BENNETT_WILLIAM_C_DE_1221_15_0461_W_1_FINAL_ORDER_1979725.pdf	2022-11-21	null	DE-1221	NP
3,905	https://www.mspb.gov/decisions/nonprecedential/NIKKILA_SEAN_C_SF_3330_17_0016_I_1_FINAL_ORDER_1979897.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SEAN C. NIKKILA, Appellant, v. DEPARTMENT OF ENERGY , Agency. DOCKET NUMBER SF-3330 -17-0016 -I-1 DATE: November 21, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Sean C. Nikkila , Sherwood, Oregon, pro se. Sally Carter , Portland, Oregon, 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 peti tion 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 circumstances: the initial decisi on contains erroneous 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the 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). We FORWARD the appellant’s claim under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) (codified as amended at 38 U.S.C. §§ 4301 -4335) , which he raised for the first time on review, to the Western Regional Office for adjudication. BACKGROUND ¶2 In August 2012, the appellant , a preferenc e eligible, applied for a GS-13 Program Analyst (Budget) position within the agency’s Bonneville Power Administration (BPA). Initial Appeal File (IAF), Tab 12 at 25 -26, Tab 13 at 9, 22. BPA informed the appellant that he was not selected for the position in September 2012 . IAF, Tab 1 at 5, Tab 12 at 9 -12. ¶3 On July 22, 2014, as a result of an investigation into BPA’s hiring practices and a resulting remediation plan , BPA sent the appellant a letter informing him that his 2012 application for the Program Analyst (Budget) position had not received appropriate consideration and offering him up to 1 year of priority consideration for an equivalent position. IAF, Tab 5 at 19 -20, Tab 6 at 2 -25, Tab 9 at 21 , Tab 11 at 24 -25, Tab 12 at 8. The appellant accepted the offer on 3 July 27, 2014, and BPA later extended the priority consideration period by 3 months , until October 2015 . IAF, Tab 5 at 20, Tab 9 at 21 -22. ¶4 On September 10, 2014, the appellant emailed BPA to inquire about the status of his priority conside ration request , and BPA replied that it had documented his request and was in the process of finalizing the list for selecting officials . IAF, Tab 1 at 5, Tab 5 at 6, 24. Thereafter, on October 7, 2014, the appellant’s then -attorney sent a letter to BPA on his behalf seeking “damages as a result of BPA’s unlawful hiring practices,” and referencing, among others, the Program Analyst (Budget) position at issue. IAF, Tab 10 at 11. During the period that the appellant’s priority consideration was active, th e agency did not refer him to a selecting official because it determined that a relevant position for which he met the specialized experience requirement did not open . IAF, Tab 5 at 23-24, Tab 9 at 20. ¶5 On November 4, 2015, the appellant submitted a requ est to BPA under the Privacy Act to determine the status of his priority consideration request because he claimed that he had not heard from BPA since its initial September 2014 email reply . IAF, Tab 5 at 6. BPA construed the request u nder both the Freedom of Information Act (FOIA) and the Privacy Act, and issued a partial response on April 26, 2016, and an additional response on August 1, 2016. Id. at 15. On August 16, 2016 , the appellant submitted a complaint to the Department of Labor (DOL) , Vet erans’ Employment and Training Service (VETS) , concerning his nonselection to the Program Analyst (Budget) position and alleging a violation of his veterans’ preference rights . IAF, Tab 1 at 5, Tab 5 at 5, 23-24. ¶6 On September 30, 2016, DOL VETS sent the a ppellant a letter informing him that it was closing his VEOA complaint because it was untimely filed and because he submitted insufficient reasons to w aive the statutory filing deadline . IAF, Tab 1 at 7 -8. The letter also provided the appellant with appe al rights to the Board. Id. at 8. 4 ¶7 The appellant subsequently filed this VEOA appeal alleging that th e agency violated his veterans’ preference rights when it did not select him for the Program Analyst (Budget) position. IAF, Tab 1. The administrative judge issued an order advising the appellant of the applicable standards and burdens of proof , including how to establish that his DOL complaint was timely filed or that the doctrine of equitable tolling applied . IAF, Tab 3. The appellant replied, conten ding that the doctrine of equitable tolling should apply because he had no r eason to know that his rights concerning the 2012 nonselection had been violated until August 2, 2016 , when he received documentation pursuant to his request under FOIA and the Privacy Act indicating that he was denied veterans’ preference during the selection process. IAF, Tab 5 at 5-6, Tab 6. He claimed that, prior to his receipt of the documentation, he was not aware of the denial of his rights in the sele ction process and that he did not know why he had received the 2014 priority consideration letter. IAF, Tab 5 at 5 -7. He also claimed that BPA “tricked” him into thinking that it was working to provide him a fair remedy by issuing him the priority consid eration letter and that it unnecessarily delayed responding to his requests for information. Id. at 7-8. ¶8 Without holding the appellant’s requested hearing , the administrative judge issued an initial decision denying his request for corrective action. IAF , Tab 15, Initial Decision (ID) at 1 -2. The administrative judge determined that the appellant had filed his complaint with DOL more than 60 days after the date of the alleged violation of his veterans ’ preference rights and that he failed to show that th e doctrine of equitable tolling should be invoked to toll the deadline . ID at 11-22. Specifically, he found that the appellant failed to show that he had actively pursued his remedies by filing a defective pleading during the statutory period or that he had been induced or tricked by agency misconduct into allowing the filing deadline to pass. ID at 16-21. ¶9 The appellant has filed a petition for review in which he primarily argues that DOL VETS improperly construed his administrative complaint under VEO A 5 rather than under USERRA . Petition for Review (PFR) File, Tab 1. He claims, therefore, that the Board should consider this appeal under USERRA. Id. at 4-6, 8. The agency has filed a response in opposition . PFR File, Tab 3. DISCUSSION OF ARGUMENTS ON REVIEW ¶10 We have reviewed the appellant’s administrative complaint to DOL VETS and the documentation provided to the administrative judge below and find no error in the classification of this appeal under VEOA. IAF, Tabs 1, 5 -6. Nevertheless, USERRA claims are broadly and liberally construed, are not subject to a statute of limitations, and may be raised in the first instance in a petition for review. See H enson v. U.S. Postal Service , 110 M.S.P.R. 624 , ¶ 10 n.6 (2009); 5 C.F.R. § 1208.12 . Because the appellant rais es a USERRA claim for the first time on review, he has not yet received notice of the applicable standards and burdens of proof . Moreover, he requested a hearing , to which h e is entitled if he establishes jurisdiction over his USERRA appeal . IAF, Tab 1 at 2 ; see Kirkendall v. Department of the Army , 479 F.3d 830 , 844 -46 (Fed. Cir. 2007) (en banc). Under these circumstances , we forward his claim under USERRA to the Western Regional Office for adjudication.2 ¶11 In the alternative, t he appellant argues that the administrative judge erred in finding that he failed to establish that the doctrine of equitable tolling should apply to his appeal . PFR File, Tab 1 at 7 -8. As the administrative judge properly explained, equitable tolling is extended only sparingly, under circumstances such as when an appellant actively had pursued his remedies by filing a defective pleading during the statutory period or when an appellant had been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass. ID at 10 -11 (citing Irwin v. Department of Veterans Affairs , 498 U.S. 89 , 96 2 An appellant may either file a USERRA complaint with the Secretary of Labor or file an appeal directly with the Board . 5 C.F.R. § 1208.11 (a); see Graham v. Commodity Futures Trading Commission , 105 M.S.P.R. 392 , ¶ 5 (2007), aff’d, 348 F. App’x 564 (Fed. Cir. 2009). 6 (1990)) ; see Brown v. U.S. Postal Service , 110 M.S.P.R. 381 , ¶ 10 (2009). Here, we agree with the administrative judge ’s well-reasoned findings that the appellant has not sho wn that either criterion is met and that equitable tolling the refore does not apply. ID at 15-22; see Brown , 110 M.S.P.R. 381 , ¶ 12 (finding that the fact that the appellant was unaware that his veterans ’ preference rights had been violated until after the 60 -day deadline had passed was not within the limited scope of reasons warran ting equitable tolling) ; Mitchell v. Department of Commerce , 106 M.S.P.R. 648 , ¶ 1 0 (2007) (explaining that the appellant’ s argum ent that he was not “aware of the injustice” in the agency’ s selection procedure until after the 60 -day filing deadline did not warrant equitable tolling), overruled on other grounds by Garcia v. Department of Agriculture , 110 M.S.P.R. 371 , ¶¶ 8 -13 (2009) . ¶12 The appellant also appears to argue on review that the administrative judge misconstrued some of the evidence he submitted below as hearsay evidence because the administrative judge did not have the benefit of all of the documents he submitted to DOL throughout the processing of his DOL complaint. PFR File, Tab 1 at 7. However, the appellant concedes that he did not submit all of the evidence that he provided to DOL to the administrative judge despite the administrative judge’s instructions to produce all relevant evidence concerning his appeal , and he has not produced this alleged evidence on review . Id.; IAF, Tab 3 at 6 -7. Neve rtheless, w e have reviewed the hearsay evidence in question and the administrative judge’s analysis of that evidence and find no error by the administrative judge in concluding, based on the record before him , that the evidence was not particularly probati ve or credible given its conclusory and speculative nature, inconsistency with other undisputed evidence, and inherent improbability . ID at 19-21; IAF, Tabs 5 -6; see Brown , 110 M.S.P.R. 381 , ¶ 12 n.2 (finding that the appellant’s declaration concerning his wife’s statements was hearsay and admissible, but not probative when it was not supported by any other evidence ). 7 ¶13 The appellant also appears to argue on review that the administrative judge failed to adequately address the remediation plan that was developed as a result of the investigation into BPA’s h iring practices and which prompted BPA’s July 2014 offer of priority consideration to him. PFR File, Tab 1 at 7 -8. He also reiterates his claims that the agency made several errors in processing his application for the Program Analyst (Budget) position, including denying him veterans’ preference and improperly finding him ineligible. Id. at 4-5; IAF, Tab 5 at 4-8. These arguments , however, concern the merits of his nonselection and, because he did not timely file his DOL complaint3 or establish that equitable tolling should apply , we do not have the authority to review his claims . See Hayes v. Department of the Army , 111 M.S.P.R. 41, ¶ 12 (2009) (finding that, when a preference eligible fails to meet the 60 -day deadline for filing a complaint with DOL and equitable tolling does not apply, the request for corrective action must be denied based on a failure to meet the time limit for filing the DOL complaint) . ¶14 Accordingly, we affirm the initial decision and forward the appellant’s claim under USERRA to the Western Regional Office for adjudication . 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 3 As the administrative judge correctly determined, the appellant’s August 2016 DOL complaint was untimely whether the 60 -day period began when he learned of his nonselection (September 2012), when he learned that he was being afforded priority consideration (July 2014), or upon expiration of the priority consideration period (October 2015). ID at 14 -15. 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions . As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 8 Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described b elow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies t o your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judic ial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 9 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any a ttorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and tha t such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court ‑appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be 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, 10 and your representative receives this decision before you do, then you must file with the EEOC no later tha n 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D) ,” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction ex pired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 11 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 12 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	NIKKILA_SEAN_C_SF_3330_17_0016_I_1_FINAL_ORDER_1979897.pdf	2022-11-21	null	SF-3330	NP
3,906	https://www.mspb.gov/decisions/nonprecedential/SUTTON_TRAVIS_LAMONT_DC_3330_16_0022_I_1_FINAL_ORDER_1979908.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-3330 -16-0022 -I-1 DATE: November 21, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Simon Banks , Alexandria, Virginia, for the appellant. Denise Gillis , Quantico, Virginia, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appe llant has filed a petition for review of the initial decision, which dismissed his Veterans Employment Opportunities Act (VEOA) appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initi al 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 administr ative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during eith er 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). We FORWARD the appellant’s claim under the Uniformed Services Employment and Reemploym ent Rights Act of 1994 (USERRA) (codified as amended at 38 U.S.C. §§ 4301 -4335) to the regional office for consideration as a new appeal. ¶2 On July 16, 2015, t he appellant, a GS -14 Contract Specialist, filed a VEOA complaint with t he Department of Labor (DOL) , Veterans’ Employment and Training Service (VETS) , in which he alleged that the agency denied him the right to compete as a preference eligible when it placed a coworker into a position for which he was qualified, without havin g advertise d it. Initial Appeal File (IAF), Tab 6 at 7.2 On October 2, 2015, DOL VETS advised the appellant that it had determined that the evidence did not support his claim, and that he could file an appeal with the Board , id., which he did, IAF, Tab 1. ¶3 In response, the agency provided evidence to show that, effective August 24, 2014, the appellant’s coworker was reassigned under 5 C.F.R. § 335.102 from her position as a GS-14 Contract Specialist to a GS -14 2 The appellant described the position in question as a GS -14 Supervisory Contract Specialist, Branch Chief for Procurement, Policy, Quality, and Metrics. IAF, T ab 1. In fact, the position was a GS -14 Supervisory Procurement Analyst. IAF, Tab 5 at 25. 3 Supervisory Procurement Analyst position, at the same pay. IAF, Tab 5 at 25 . The agency argued that because veterans’ preference does not apply to internal agency actions, inclu ding reas signment s, the appellant was not denied the right to compete for the position . Id. at 9-10. ¶4 In a submission filed prior to the close of the record, the appellant argued , without support, that his coworker’s August 24, 2014 reassignment substantially increased her salary, thereby render ing the action a promotion falsely “masquerading” as a “reassignment ,” and that such a “promotional opportunity” must be open and posted for competition. IAF, Tab 13 at 5 -6. ¶5 In his initial decision based on the written record ,3 the administrative judge found that the appellant failed to nonfrivolously allege the agency den ied him the right to compete under VEOA for the Supervisory Procurement Analyst position because the agency did not fill the position competitively, but rather by reassignment, which was within it s discretion to do. IAF, Tab 29 , Initial Decision (ID) at 4 -5. As such, the administrative judge dismissed the appeal for lack of jurisdiction .4 ID at 1, 5. ¶6 The appellant has filed a petition for review, Petition for Review (PFR) File, Tab 1, t o which the agency has not responded. ¶7 To establish Board jurisdiction over a “right to compete” claim asserted under V EOA, an appellant must: (1) show that h e exhausted his remedy with DOL; and (2) make nonfrivolous allegations that (i) he is a veteran w ithin the meaning of the veterans’ preference statute, (ii) the actions at issue took place on or after the December 10, 2004 enactment date of the Veterans’ Benefits 3 The appellant declined a hearing. IAF, Tab 1 at 2. 4 Early in the adjudication of the appeal, the administrative judge found that the appellant had satisfied the requirements necessary for the Board to assume jurisdiction over his appeal under VEOA. IAF, Tab 7. Because we agree with the administrative judge’s ultimate finding that the appellant, in fact, failed to set forth the requisite nonfrivolous allegati ons necessary to establish the Board’s jurisdiction, we do not credit the administrative judge’s earlier contrary statement finding jurisdiction. 4 Improvement Act of 2004, and (iii) 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 the statute. 5 U.S.C. §§ 3304 (f)(1), 3330a( a)(1)(B); Becker v. Department of Veteran s Affairs , 115 M.S.P.R. 409 , ¶ 5 (2010) . ¶8 Here, the appellant showed that he had exhausted his remedy with DOL , IAF, Tab 6 at 7, made nonfrivolous allegations that he is a veteran und er the appropriate authority, id. at 11, and that the action took place on or after December 10, 2004 , IAF, Tab 5 at 25. However, as the administrative judge correctly foun d, there was no job announcement under which the appellant sought to be placed. Rather, the agency simply reassigned his coworker from one position to another of equal grade and pay . Under these circumstances, the appellant has failed to nonfrivolously allege that the agency denied him the right to compete under merit promotion procedures for a vacant position. Therefore, he has not establish ed that the Board has jurisdiction over his appeal under VEOA, and the administrative judge properly dismissed the appeal for lack of jurisdiction. See Becker , 115 M.S.P.R. 409 , ¶ 6 (finding that the app ellant did not establish the Board’s jurisdiction over his claim that the agency violated VEOA when it noncompetitively promoted others but failed to noncompetitively promote him from the GS -5 to the GS -6 level, when there was no job announcement for which the appellant sought a promotion). ¶9 We have considered the appellant’s other claims on review and find them unavailing. He contends that the agency violated 5 U.S.C. § 2302 (b)(6)5 when it “hired” his coworker as a Supervisory Procurement Analyst without competition and without affording the appellant the right to compete. PFR File, Tab 1 at 5. 5 Title 5 U.S. Code, § 2302(b)(6), provides that it is a prohibited personnel practice to “grant any preferenc e or advantage not authorized by law, rule, or regulation to any employee or applicant . . . for the purpose of improving or injuring the prospects of any particular person for employment. ” 5 He also claims that the agency violated 5 U.S.C. § 2302 (b)(4)6 and (b)(12).7 Id. at 19. As noted, however, we have found that the Board lacks jurisdiction over this appeal , and p rohibited personnel practices under 5 U.S.C. § 2302 (b) are not an independen t source of Board jurisdiction. Wren v. Department of the Army , 2 M.S.P.R. 1 , 2 (1980), aff’d, 681 F.2d 867 , 871 -73 (D.C. Cir. 1982). ¶10 The appellant further argues that the administrative judge erred in denying his motion to join this appeal with other appeal s he has pending before the Board.8 PFR File, Tab 1 at 5. In a motion filed on the date the record closed below, the appellant requested that th e administrative judge join this appeal with his USERRA appeal a nd his IRA appeal , arguing that the matters were “inextricably intertwined.” IAF, Tab 25. On the same day, t he appellant filed another motion seeking a “Stay of Closure of VEOA Appeal Until the Administrative Judge Decides the Appellant’s Motion to Join All of [ His] Appeals.” IA F, Tab 26. The administrative judge exercised his discretion not to join the appeals, but did not issue a ruling to that effect. In any event, at the time the appellant filed the motion, he did not have a pending USERRA appeal , 6 Title 5 U.S. Code, § 2302(b)(4) provides that it is a prohibited personnel practice to “deceive or willfully obstruct any person with respect to such person’s right to compete for employment. ” 7 Title 5 U.S. Code, § 2302(b)(12) provides that is a prohibited personnel practice to “take or fail to take any other personne l action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system princ iples contained in section 2301 of [Title 5 ].” 8 The appellant raised concerns regarding other appeal s he had filed with the Board, which were pending at the time. See, e.g., PFR File, Tab 1 at 15. The administrative judge dismissed the appellant’s individual right of action appeal for lack of jurisdiction, and the initial decision became the final deci sion of the Board after neither party filed a petition for review. Sutton v. Department of the Navy , MSPB Docket No. DC -1221 -15- 0966 -W-2, Initial Decision (July 18, 2017) . The appellant also filed an appeal of his removal and a petition for review of the initial decision in that matter. His petition for review is currently pending and the Board will issue a separate decision in that docket number. Sutton v. Department of t he Navy , MSPB Docket No. DC -0752 -16-0130 -I-3. Under the circumstances, we have not addressed any arguments the appellant has ra ised concerning these matters. 6 although he did have a pen ding IRA appeal . He suggests on review that a joinder would promote judicial economy and reduce costs , PFR File, Tab 1 at 4-5, but he has not demonstrat ed that the requested action would expedite processing of the cases and would not adversely affect the interests of the parties. 5 C.F.R. § 1201.36 (b). Thus, to the extent the administrative judge erred in failing to rule on the appellant ’s motion for joinder , any such error did not prejudice his substant ive rights. Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984). ¶11 The appellant further argues that the administrative judge erred in failing to “credit” his objections to the administrative judge’s summary of the telephonic conference. PFR File, Tab 1 at 6. In the objections he filed, the appellant first argued that th e administrative judge “omitted ” his allegation that the agency fraudulently concealed its predisposition to select his coworker for the position at issue , IAF, Tab 27 at 4 , 6, and committed numerous prohibited personnel practice s, id. at 8 . A review of the administrative judge ’s summary of the conference reveals that he properly discussed the issues in the appeal , the law, and the parties’ burdens of proof, explained that there would be no hearing, and set a date for the close of the record. IAF, Tab 22. The administrative judge did not, nor was he required to, set forth the specific claims of either party , including those mentioned above and the appellant ’s claims which related to his IRA appeal, IAF, Tab 27 at 4 -5, 7-9, and his removal, id. at 9, neither of which was at issue in this VEOA appeal . With his objections, the appellant submitted a number of documents which do not appear to have any relevance to this appeal. Id. at 17 -55. Although the administrative judge did not specifically address the appellant ’s objections to his summary, which are more properly considered as argument, the appellant has not shown any abuse of discretion by the administrative judge in this regard . 5 C.F.R. § 1201.41 (b). ¶12 The appellant contend s on review , as he did below, that his coworker’s reassignment was a sham in that she was really promoted , that the agency 7 fraudulently concealed this information , and that the administrative judge erred in failing to consider t his argument . PFR File, Tab 1 at 7-11. The appellant ’s unsupported claim s regarding his coworker do not change the fact that the appellant did not show that he was denied the right to compete under merit promotion procedures for a vacant position and that he did not, therefore, establish the Board’s jurisdiction over his appeal. ¶13 The appellant also claims that the administrative judge made arbitrary credibility determinations , which he asks the Board to overturn. Id. at 12 -13. However, the administrative judge made no such determinations; nor was he required to because the operative facts of this case were not disputed . ID at 2. ¶14 The appellant appears to argue on review that the agency’s action in this case constitutes an in valid employment practice under 5 C.F.R. p art 300 in an unspecified way. PFR File, Tab 1 at 20 -21. However, b ecause the appellant failed to raise this claim below, we will not consider it.9 Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980) ; IAF, Tab 22. ¶15 Finally, t he appellant seeks to “incorporate by reference” his USERRA appeal . PFR File, Tab 1 at 5. The reco rd reflects that, in summarizing his close -of-record telephonic conference, the administrative judge stated that “[t]he appellant indicated that he is not claiming a violation of USERRA in this appeal, and to the extent his petition for appeal suggests tha t he is making such a claim, he hereby withdraws that claim.” IAF, Tab 22 at 2. The administrative judge 9 The appellant earlier filed an employment practices claim with the Board when the agency did no t select him for the GS -14 position of Supervisory Contract Specialist because he did not meet the education requirement set forth in the vacancy announcement. The administrative judge dismissed that appeal for lack of jurisdiction, Sutton v. Department o f Veterans Affairs , MSPB Docket No. DC -300A -14-0641 -I-1, Initial Decision at 1, 7 (Dec. 22, 2015). The full Board denied the appellant’s petition for review of the initial decision and affirmed it as modified to dismiss his related VEOA and USERRA claims as barred by res judicata and collateral estoppel. Sutton v. Department of Veterans Affairs , MSPB Docket No. DC -300A -14-0641 -I-1, Final Order at 7-8 (Apr. 12, 2016 ). This employment practice case is not related to, and has no bearing on , the instant appe al. 8 further stated that, if either party disagreed with the accuracy of the summary, the administrative judge must receive a written objection to the sum mary no later than June 16, 2016. Id. at 4-5. In the objections he filed on the date the record closed, the appellant stated that USERRA “is not an issue here.” IAF, Tab 27 at 13. Moreover, o n June 15, 2016, the appellant submitted an appeal pursuant t o USERRA. IAF, Tab 23. Thus, it wo uld appear that he did not intend to abandon this claim. We therefore forward t he issue to the regional office for consideration as a new appeal. NOTICE OF APPEAL RIG HTS10 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described b elow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to 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. 10 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 9 (1) Judicial review in general . As a general rule, an appellant seeking judicia l review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Ci rcuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Pe titioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit ou r website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any att orney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 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 10 receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and 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) 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: 11 Office of Federal 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.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 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, 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 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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	SUTTON_TRAVIS_LAMONT_DC_3330_16_0022_I_1_FINAL_ORDER_1979908.pdf	2022-11-21	null	DC-3330	NP
3,907	https://www.mspb.gov/decisions/nonprecedential/SUTTON_TRAVIS_LAMONT_DC_4324_23_0103_I_1_FINAL_ORDER_1980079.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-3330 -16-0022 -I-1 DATE: November 21, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Simon Banks , Alexandria, Virginia, for the appellant. Denise Gillis , Quantico, Virginia, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appe llant has filed a petition for review of the initial decision, which dismissed his Veterans Employment Opportunities Act (VEOA) appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initi al 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 administr ative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during eith er 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). We FORWARD the appellant’s claim under the Uniformed Services Employment and Reemploym ent Rights Act of 1994 (USERRA) (codified as amended at 38 U.S.C. §§ 4301 -4335) to the regional office for consideration as a new appeal. ¶2 On July 16, 2015, t he appellant, a GS -14 Contract Specialist, filed a VEOA complaint with t he Department of Labor (DOL) , Veterans’ Employment and Training Service (VETS) , in which he alleged that the agency denied him the right to compete as a preference eligible when it placed a coworker into a position for which he was qualified, without havin g advertise d it. Initial Appeal File (IAF), Tab 6 at 7.2 On October 2, 2015, DOL VETS advised the appellant that it had determined that the evidence did not support his claim, and that he could file an appeal with the Board , id., which he did, IAF, Tab 1. ¶3 In response, the agency provided evidence to show that, effective August 24, 2014, the appellant’s coworker was reassigned under 5 C.F.R. § 335.102 from her position as a GS-14 Contract Specialist to a GS -14 2 The appellant described the position in question as a GS -14 Supervisory Contract Specialist, Branch Chief for Procurement, Policy, Quality, and Metrics. IAF, T ab 1. In fact, the position was a GS -14 Supervisory Procurement Analyst. IAF, Tab 5 at 25. 3 Supervisory Procurement Analyst position, at the same pay. IAF, Tab 5 at 25 . The agency argued that because veterans’ preference does not apply to internal agency actions, inclu ding reas signment s, the appellant was not denied the right to compete for the position . Id. at 9-10. ¶4 In a submission filed prior to the close of the record, the appellant argued , without support, that his coworker’s August 24, 2014 reassignment substantially increased her salary, thereby render ing the action a promotion falsely “masquerading” as a “reassignment ,” and that such a “promotional opportunity” must be open and posted for competition. IAF, Tab 13 at 5 -6. ¶5 In his initial decision based on the written record ,3 the administrative judge found that the appellant failed to nonfrivolously allege the agency den ied him the right to compete under VEOA for the Supervisory Procurement Analyst position because the agency did not fill the position competitively, but rather by reassignment, which was within it s discretion to do. IAF, Tab 29 , Initial Decision (ID) at 4 -5. As such, the administrative judge dismissed the appeal for lack of jurisdiction .4 ID at 1, 5. ¶6 The appellant has filed a petition for review, Petition for Review (PFR) File, Tab 1, t o which the agency has not responded. ¶7 To establish Board jurisdiction over a “right to compete” claim asserted under V EOA, an appellant must: (1) show that h e exhausted his remedy with DOL; and (2) make nonfrivolous allegations that (i) he is a veteran w ithin the meaning of the veterans’ preference statute, (ii) the actions at issue took place on or after the December 10, 2004 enactment date of the Veterans’ Benefits 3 The appellant declined a hearing. IAF, Tab 1 at 2. 4 Early in the adjudication of the appeal, the administrative judge found that the appellant had satisfied the requirements necessary for the Board to assume jurisdiction over his appeal under VEOA. IAF, Tab 7. Because we agree with the administrative judge’s ultimate finding that the appellant, in fact, failed to set forth the requisite nonfrivolous allegati ons necessary to establish the Board’s jurisdiction, we do not credit the administrative judge’s earlier contrary statement finding jurisdiction. 4 Improvement Act of 2004, and (iii) 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 the statute. 5 U.S.C. §§ 3304 (f)(1), 3330a( a)(1)(B); Becker v. Department of Veteran s Affairs , 115 M.S.P.R. 409 , ¶ 5 (2010) . ¶8 Here, the appellant showed that he had exhausted his remedy with DOL , IAF, Tab 6 at 7, made nonfrivolous allegations that he is a veteran und er the appropriate authority, id. at 11, and that the action took place on or after December 10, 2004 , IAF, Tab 5 at 25. However, as the administrative judge correctly foun d, there was no job announcement under which the appellant sought to be placed. Rather, the agency simply reassigned his coworker from one position to another of equal grade and pay . Under these circumstances, the appellant has failed to nonfrivolously allege that the agency denied him the right to compete under merit promotion procedures for a vacant position. Therefore, he has not establish ed that the Board has jurisdiction over his appeal under VEOA, and the administrative judge properly dismissed the appeal for lack of jurisdiction. See Becker , 115 M.S.P.R. 409 , ¶ 6 (finding that the app ellant did not establish the Board’s jurisdiction over his claim that the agency violated VEOA when it noncompetitively promoted others but failed to noncompetitively promote him from the GS -5 to the GS -6 level, when there was no job announcement for which the appellant sought a promotion). ¶9 We have considered the appellant’s other claims on review and find them unavailing. He contends that the agency violated 5 U.S.C. § 2302 (b)(6)5 when it “hired” his coworker as a Supervisory Procurement Analyst without competition and without affording the appellant the right to compete. PFR File, Tab 1 at 5. 5 Title 5 U.S. Code, § 2302(b)(6), provides that it is a prohibited personnel practice to “grant any preferenc e or advantage not authorized by law, rule, or regulation to any employee or applicant . . . for the purpose of improving or injuring the prospects of any particular person for employment. ” 5 He also claims that the agency violated 5 U.S.C. § 2302 (b)(4)6 and (b)(12).7 Id. at 19. As noted, however, we have found that the Board lacks jurisdiction over this appeal , and p rohibited personnel practices under 5 U.S.C. § 2302 (b) are not an independen t source of Board jurisdiction. Wren v. Department of the Army , 2 M.S.P.R. 1 , 2 (1980), aff’d, 681 F.2d 867 , 871 -73 (D.C. Cir. 1982). ¶10 The appellant further argues that the administrative judge erred in denying his motion to join this appeal with other appeal s he has pending before the Board.8 PFR File, Tab 1 at 5. In a motion filed on the date the record closed below, the appellant requested that th e administrative judge join this appeal with his USERRA appeal a nd his IRA appeal , arguing that the matters were “inextricably intertwined.” IAF, Tab 25. On the same day, t he appellant filed another motion seeking a “Stay of Closure of VEOA Appeal Until the Administrative Judge Decides the Appellant’s Motion to Join All of [ His] Appeals.” IA F, Tab 26. The administrative judge exercised his discretion not to join the appeals, but did not issue a ruling to that effect. In any event, at the time the appellant filed the motion, he did not have a pending USERRA appeal , 6 Title 5 U.S. Code, § 2302(b)(4) provides that it is a prohibited personnel practice to “deceive or willfully obstruct any person with respect to such person’s right to compete for employment. ” 7 Title 5 U.S. Code, § 2302(b)(12) provides that is a prohibited personnel practice to “take or fail to take any other personne l action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system princ iples contained in section 2301 of [Title 5 ].” 8 The appellant raised concerns regarding other appeal s he had filed with the Board, which were pending at the time. See, e.g., PFR File, Tab 1 at 15. The administrative judge dismissed the appellant’s individual right of action appeal for lack of jurisdiction, and the initial decision became the final deci sion of the Board after neither party filed a petition for review. Sutton v. Department of the Navy , MSPB Docket No. DC -1221 -15- 0966 -W-2, Initial Decision (July 18, 2017) . The appellant also filed an appeal of his removal and a petition for review of the initial decision in that matter. His petition for review is currently pending and the Board will issue a separate decision in that docket number. Sutton v. Department of t he Navy , MSPB Docket No. DC -0752 -16-0130 -I-3. Under the circumstances, we have not addressed any arguments the appellant has ra ised concerning these matters. 6 although he did have a pen ding IRA appeal . He suggests on review that a joinder would promote judicial economy and reduce costs , PFR File, Tab 1 at 4-5, but he has not demonstrat ed that the requested action would expedite processing of the cases and would not adversely affect the interests of the parties. 5 C.F.R. § 1201.36 (b). Thus, to the extent the administrative judge erred in failing to rule on the appellant ’s motion for joinder , any such error did not prejudice his substant ive rights. Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984). ¶11 The appellant further argues that the administrative judge erred in failing to “credit” his objections to the administrative judge’s summary of the telephonic conference. PFR File, Tab 1 at 6. In the objections he filed, the appellant first argued that th e administrative judge “omitted ” his allegation that the agency fraudulently concealed its predisposition to select his coworker for the position at issue , IAF, Tab 27 at 4 , 6, and committed numerous prohibited personnel practice s, id. at 8 . A review of the administrative judge ’s summary of the conference reveals that he properly discussed the issues in the appeal , the law, and the parties’ burdens of proof, explained that there would be no hearing, and set a date for the close of the record. IAF, Tab 22. The administrative judge did not, nor was he required to, set forth the specific claims of either party , including those mentioned above and the appellant ’s claims which related to his IRA appeal, IAF, Tab 27 at 4 -5, 7-9, and his removal, id. at 9, neither of which was at issue in this VEOA appeal . With his objections, the appellant submitted a number of documents which do not appear to have any relevance to this appeal. Id. at 17 -55. Although the administrative judge did not specifically address the appellant ’s objections to his summary, which are more properly considered as argument, the appellant has not shown any abuse of discretion by the administrative judge in this regard . 5 C.F.R. § 1201.41 (b). ¶12 The appellant contend s on review , as he did below, that his coworker’s reassignment was a sham in that she was really promoted , that the agency 7 fraudulently concealed this information , and that the administrative judge erred in failing to consider t his argument . PFR File, Tab 1 at 7-11. The appellant ’s unsupported claim s regarding his coworker do not change the fact that the appellant did not show that he was denied the right to compete under merit promotion procedures for a vacant position and that he did not, therefore, establish the Board’s jurisdiction over his appeal. ¶13 The appellant also claims that the administrative judge made arbitrary credibility determinations , which he asks the Board to overturn. Id. at 12 -13. However, the administrative judge made no such determinations; nor was he required to because the operative facts of this case were not disputed . ID at 2. ¶14 The appellant appears to argue on review that the agency’s action in this case constitutes an in valid employment practice under 5 C.F.R. p art 300 in an unspecified way. PFR File, Tab 1 at 20 -21. However, b ecause the appellant failed to raise this claim below, we will not consider it.9 Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980) ; IAF, Tab 22. ¶15 Finally, t he appellant seeks to “incorporate by reference” his USERRA appeal . PFR File, Tab 1 at 5. The reco rd reflects that, in summarizing his close -of-record telephonic conference, the administrative judge stated that “[t]he appellant indicated that he is not claiming a violation of USERRA in this appeal, and to the extent his petition for appeal suggests tha t he is making such a claim, he hereby withdraws that claim.” IAF, Tab 22 at 2. The administrative judge 9 The appellant earlier filed an employment practices claim with the Board when the agency did no t select him for the GS -14 position of Supervisory Contract Specialist because he did not meet the education requirement set forth in the vacancy announcement. The administrative judge dismissed that appeal for lack of jurisdiction, Sutton v. Department o f Veterans Affairs , MSPB Docket No. DC -300A -14-0641 -I-1, Initial Decision at 1, 7 (Dec. 22, 2015). The full Board denied the appellant’s petition for review of the initial decision and affirmed it as modified to dismiss his related VEOA and USERRA claims as barred by res judicata and collateral estoppel. Sutton v. Department of Veterans Affairs , MSPB Docket No. DC -300A -14-0641 -I-1, Final Order at 7-8 (Apr. 12, 2016 ). This employment practice case is not related to, and has no bearing on , the instant appe al. 8 further stated that, if either party disagreed with the accuracy of the summary, the administrative judge must receive a written objection to the sum mary no later than June 16, 2016. Id. at 4-5. In the objections he filed on the date the record closed, the appellant stated that USERRA “is not an issue here.” IAF, Tab 27 at 13. Moreover, o n June 15, 2016, the appellant submitted an appeal pursuant t o USERRA. IAF, Tab 23. Thus, it wo uld appear that he did not intend to abandon this claim. We therefore forward t he issue to the regional office for consideration as a new appeal. NOTICE OF APPEAL RIG HTS10 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described b elow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to 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. 10 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 9 (1) Judicial review in general . As a general rule, an appellant seeking judicia l review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Ci rcuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Pe titioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit ou r website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any att orney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 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 10 receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and 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) 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: 11 Office of Federal 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.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 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, 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 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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	SUTTON_TRAVIS_LAMONT_DC_4324_23_0103_I_1_FINAL_ORDER_1980079.pdf	2022-11-21	null	DC-3330	NP
3,908	https://www.mspb.gov/decisions/nonprecedential/SANCHEZ_ALICEA_LIRIO_B_NY_0752_14_0197_I_1_FINAL_ORDER_1979165.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD LIRIO B. SANCHEZ -ALICEA, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER NY-0752 -14-0197 -I-1 DATE: November 18, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Ruy V. Diaz , San Juan, Puerto Rico, for the appellant. Ana M. Margarida , San Juan, Puerto Rico, 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 her constructive 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 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during ei ther the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available tha t, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 The appellant , a Program Support Assistant for the Medical Media Service of the agency’s Caribbean Healthc are System in San Juan, Puerto Rico, alleged that she suffered a September 2013 injury at work . Initial Appeal File (IAF), Tab 1, Tab 9 at 2. Sh e subsequently sought medical treatment, filed a claim regarding her injury with the Office of Worke rs’ Compen sation Programs (OWCP) , and underwent surgery to repair rotator c uff injuries . IAF, Tab 9 at 2 , Tab 5 at 59 -62. OWCP denied the appellant’s injury claim . IAF, Tab 5 at 34. She remained on approved leave until she reported for work on February 3, 2014 , requesting work within her restrictions as set forth by her physician on a n OWCP Form CA-17, Duty Status Report . IAF, Tab 5 at 32 -33, Tab 9 at 2 -3, Tab 11 at 5 . ¶3 Based on her physician’s January 8, 2014 examination, t he Form CA-17 described limitations in the appellant’s range of motion and recommended that she work part-time, restricting her sitting, standing, walking, climbing , kneeling, bending/stooping, and twisting to a maximum of 6 hours per day, and limiting any simple grasping or fine manipulation to 3 hours per day. IAF, T ab 5 at 32. The 3 appellant’s supervisor, in consultation with agency specialists, declined to accept the CA -17 F orm as sufficient for the appellant to return to duty because OWCP had denie d her claim and the form , which was almost a month old , was not current and lacked sufficient information to make the proper determination . August 11, 2014 Hearing Transcript 1 (HT1) at 45-49, 53 -64 ( testimony of the appellant’s supervisor ). The supervisor directed the appellant to see the individuals responsib le for reasonable accommodation , and one of those individuals advised the appellant to fill out a Family and Medical Leave Act (FMLA ) certification form to provide specific information regarding her restrictions. IAF, Tab 9 at 12, 20. ¶4 The appellant submitted the FMLA certification form on February 12 , 2014 . IAF, Tab 5 at 21 -24. Because her physician indicated on the certification form that the appellant could not perform some of her job functions, id. at 23, her supervis or referred her to the local rea sonable accommodation coordinator , HT1 at 74 -76 (testimony of the appellant’s supervisor ). The appellant scheduled a February 14, 2014 meeting with the coordinator , but she did not show up for the appointment or seek to res chedule it . September 11, 2014 Hearing Transcript 2 at 265-66 (testimony of the reasonable accommodation coordinator ), 305 -08 (testimony of the appellant ). Instead, less than 2 weeks later, she filed this appeal. IAF, Tab 1. ¶5 The administrative judge found that the appellant made nonfrivolous allegation s of jurisdiction over an alleged constructive suspension, and held a jurisdictional hearing . IAF, Tab 13. After holding that hearing, she issued an initial decision that dismissed the appeal for lack of jurisdiction, finding that the appellant f ailed to establish that the agency’s denial of her reasonable accommodation request, or the retaliation she alleged, caused her absence . IAF, Tab 40, Initial Decision (ID) at 16-23. The administrative judge fo und that the agency’s failure to allow the appellant light duty on February 3 or February 12, 2014, was not wrongful because “the agency wanted to ensure she was cleared to 4 perform work within her limitations.” ID at 21. Thus, she determined that the appellant’s absence was due to the limitations placed on her by her medical provider, not by any wrongful agency actions , and there was no evidence to indicate that the agency had duties at the appellant’s grade or skill level within her medical restrictions. ID at 21 -22. Although the administrative judge noted that the in teractive process regarding reasonable accommodation was somewhat limited in this instance, s he found that the process was truncated because of the appellant’s failure to attend a meeting with the reasonable accommodation coordinator , and not because of any agency wrongdoing. ID at 21-23. ¶6 In her petition for review, the appellant argues that the administrative judge erred in her assessment of the evidence, failed to consider all the fact s, and incorrectly applied the law . Petition for Review (PFR) File, Tab 1 at 2 -3, 11-17. She challenges the administrative judge’s finding that the agency was not obligated to offer he r light -duty work , and reiterates her argument that the agency committ ed harmful error when it failed to follow its own procedures regarding her request for reasonable accomm odation , insisting that the agency would have reached a different result had it done so . Id. at 11 -17. The agency has not respond ed to the petition fo r review . DISCUSSION OF ARGUME NTS ON REVIEW ¶7 Although various fact patterns may give rise to an appealable constructive removal or suspension, all such claims are premised on the proposition that an absence that appears to be voluntary actually is not. Thomas v. Department of the Navy , 123 M.S.P.R. 628 , ¶ 12 (2016) ; Rosario -Fabregas v. Department of the Army , 122 M.S.P.R . 468, ¶ 8 (2015 ), aff’d, 833 F.3d 1342 (Fed. Cir. 2016) . To demonstrate that an absence from work was not voluntary, and is instead an actionable constructive suspension, an appellant must show that: (1) she lacked a meaningful choice in the matter; and (2) it was the agency ’s wrongful actions that deprived her of that choice . E.g., Romero v. U.S. Postal Service , 121 M.S.P.R. 5 606, ¶ 8 (2014 ). Assuming that the jurisdictional requirements of 5 U.S.C. chapter 75 are otherwise met, proof of these two things is sufficient to establis h Board jurisdiction. Rosario -Fabregas , 122 M.S.P.R . 468, ¶ 8; Romero , 121 M.S.P.R. 606 , ¶¶ 8-9. Our reviewing court has endorsed this approach . Rosario -Fabregas , 833 F.3d at 1346 -47. ¶8 The record reflects that the appellant lacked a meaningful choice with regard to her ab sence , satisfying the first prong of the analysis . See e.g. , Romero , 121 M.S.P.R. 606 , ¶ 9 (finding that once an employee is released to wor k with medical restrictions, an agency’ s decision not to retur n that employee to work deprives the employee of a meaningful choice in the matter) ; Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶ 8 (2013) . The FMLA certification form that the appellant submitted released her to work with restrictions, and the agency did not return her. IAF, Tab 5 at 21 -24. Nevertheless, we agree with the administrative judge that the appellant failed to est ablish the second prong of the analysis, i.e., that any wrongful action by the agency deprived her of that choice. ID at 22 -23. ¶9 The key to the second prong of this analysis is whether the agency acted improperly in refusing to allow the appellant to return to work. Romero , 121 M.S.P.R. 606 , ¶ 8; Bean , 120 M.S.P.R. 397 , ¶ 13. The administrative judge found that despite the limited int eractive process provided by the agency, the appellant’s failure to appear for her scheduled meeting with the accommodation coordinator cut the interactive process short and precluded the exploration of any possible accommodation. ID at 21 -22. The appell ant argues on review that her failure to participate in the interactive process is not equivalent to a voluntary decision not to come to work. PFR File, Tab 1 at 12. We agree with the administrative judge that the appellant’s failure to engage in the int eractive process was ultimately the cause of her absence and not any improper agency action. See Rosario -Fabregas , 122 M.S.P.R. 468 , ¶¶ 18-19. The appellant bears the burden of proving that an accommodation she seeks is reasonable. Clemens v. Department of the Army , 120 M.S.P.R. 616 , ¶ 17 (2014) . The appellant’s refusal 6 to meet with the reasonable accommodation coordinator was obstructive, not interactive. Both parties, including the appellant, are expected to engage in this interactive process in good faith. See, e.g. , Rehling v. City of Chicago , 207 F.3d 1009 , 1015 -16 (7 th Cir. 2000); see also Simpson v. U.S. Postal Service , 113 M.S.P.R. 346 , ¶ 18 (2010) (find ing that the appellant did not pro ve the denial of reasonable accommodation when he was unresponsive to the agency’s good faith attempts to engage in the interactive process); 29 C.F.R. § 1630.2 (o)(3) (to determine the appropriate reasonable accommodation, an agency may need to “initiate an informal , interactive process with the individual with a disability in need of the accommodation”) (emphasis added). Thus, even assuming that the appellant is a qualified i ndividual with a disability, her refusal to engage in the interactive process prevented the agency from identifying a reasonable accommodation. Id.; see Miller v. Department of the Army , 121 M.S.P.R. 189 , ¶¶ 19-21 (2014) (finding an appellant frustrated the agency ’s reasonable accommodation efforts) . ¶10 We also agree with the administrative judge that the section of the appellant’s collective bargaining agreement (CBA) requiring the agency to make serious efforts to assign an employee to temporary light -duty work did not apply in the appellant’s circumstances because OWCP denied her claim . ID at 10-13; IAF, Tab 12 at 23 -28. On review, the appellant contends that the CBA section does not require that an OWCP claim be approved before the agency may determine if a temporary accommodation can be made. PFR File, Tab 1 at 14. This argument conflates the a gency’s obligation to provide light duty with the interactive process designed to determine a reasonable accommodation. The record reflect s that the agency did not condition its participation in the i nteractive process on the success of the appellant’s OW CP claim , but instead , that the agency referred the appellant to the reasonable accommodation co ordinator after OWCP denied her claim. ID at 11-12. The agency’s action was appropriate under the circumstances. Moreover, in light of the appellant’s failur e to keep or 7 reschedule her appointment with the reasonable accommodation coordinator , the agency did not act improperly in failing to provide her light duty . See Rosario -Fabregas , 122 M.S.P.R. 468 , ¶¶ 18-19 (considering the appellant’s failure to engage in the interactive process, the agency did not act improperly in refusing to place the app ellant back in a duty status) . ¶11 Next, t he appellant claim s that the agency failed to follow its procedures and issue a written acknowledgment of her request for reasonable accommodation, and reiterates her contentio n that this was harmful error. PFR File, Tab 1 at 4 -5. Harmful error under 5 U.S.C. § 7701 (c)(2)(A) cannot be presumed; an agency error is harmful only if the record shows that the procedural error was likely to have caused the agency to rea ch a conclusion different from the one it would have reached in the absence or cure of the error. Stephen v. Department of the Air Force , 47 M.S.P.R. 672 , 681, 685 (1991). Nothing in the record indicates that the appellant would have show n up for her February 14, 2014 appointm ent with the reasonable accommodation coordinator, or that she would have attempted to reschedule the appointment , if the agency had issued the written acknowledgment. Thus , we find that the appellant has failed to show that the agency would have provided her with light duty in the absence of the purported error. ¶12 Lastly, r egarding the appellant’s contention that the administrative judge did not consider all the facts, her failure to mention all of the evidence of record does not mean that she did not con sider the entirety of the record in reaching her decision. Marques v. Department of Health & Human Services , 22 M.S.P.R. 129 , 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). Moreover, the administrative judge addressed some of the issues that the appellant claims on review are missing from the analysis. For example, the appellant asserts that the administrative judge failed to address her allegations of retaliation , PFR File, Tab 1 at 10, but the initial decision indicates otherwise; the administrative judge 8 analyzed and then rejected the appellant’s assertions of retaliation based on the testimony before her, ID at 22 -23. ¶13 For the foregoing reasons, we affirm the initial decision, which dismissed this appeal for lack of jurisdiction. NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the followin g summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding whic h cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particula r forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with t he U.S. Court of Appeals for the Federal Circuit, which must be 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. 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 in formation about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 EE OC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that 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 day s after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and 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 decisio n. 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, c osts, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Loca tor/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. m ail, 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 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 p ractice described in section 2302(b) other than practi ces described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 ap peals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov /probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 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/Co urt_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SANCHEZ_ALICEA_LIRIO_B_NY_0752_14_0197_I_1_FINAL_ORDER_1979165.pdf	2022-11-18	null	NY-0752	NP
3,909	https://www.mspb.gov/decisions/nonprecedential/ASHMAWY_TAREK_E_DE_3443_17_0352_I_1_FINAL_ORDER_1979205.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD TAREK E. ASHMAWY, Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Agency. DOCKET NUMBER DE-3443 -17-0352 -I-1 DATE: November 18, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Tarek E. Ashmawy , Crownpoint, New Mexico, pro se. Nigel Gant , Esquire, Dallas, 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 filed a petition for review of the initial decisio n, which dismissed his appeal —concerning the 14-day suspension of his clinical privileges and the denial of a con tinuing education course —for lack of jurisdiction without holding the requested hearing . Generally, we grant petitions such as this one only 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulatio n 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 r esulting 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 1201.1 15 (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 petit ion for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 On review, the appellant does not address or challenge the administrative judge’s jurisdictional findings, but he asserts , for the first time , that the Board has jurisdiction to review his claims because the agency allegedly committed the prohibited personnel practices (PPPs) found at 5 U.S.C. § 2302 (b)(1), (4)-(5). Petition fo r Review (PFR) File, Tab 1 at 3, Tab 6 at 4-6. 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 previou sly 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 consideration of his submission s on review does not warrant a different outcome . ¶3 The Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule , or regulation . Maddox v. Merit Systems Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). The Board does not have jurisdiction over all matters involving a Federal employee that are allegedly unfair or incorrect. Johnson v. U.S. Postal Service , 67 M.S.P.R. 573 , 577 (1995) . The suspension of an employee’s clinical privileges or medical credentials, 3 untether ed to an otherwise appealable adverse action, is not in itself an a dverse action appealable to the Board. Sage v. Department of the Army , 108 M.S.P.R. 398, ¶ 8 (2008) , abrogated on other ground s by Bean v. U.S. Postal Service , 120 M.S.P.R. 397 (2013). The agency did not subject the appellant to any otherwise appea lable adverse action when it suspended his clinical privileges . See 5 U.S.C. §§ 7512 , 7513(d) ; Initial Appeal File (IAF), Tab 1 at 12 . Furthermore, an agency’s denial of a continuing education course r equest is not within the Board’s general appellate jurisdiction. See 5 C.F.R. § 1201.3 . Finally, the appellant’s assertion that the agency committed three PPPs , as described in 5 U.S.C . § 2302 (b)(1), (4) -(5), does not establish Board jurisdiction over his appeal . Wren v. Department of the Army , 2 M.S.P.R. 1 , 2 (1980) (finding that allegations of PPPs under 5 U.S.C. § 2302 (b) are not an independent source of Board jurisdiction) , aff’d, 681 F.2d 867 , 871 -73 (D.C. Cir. 1982) .2 The appellant has not alleged PPPs as described in 5 U.S.C. § § 2302 (b)(8) or (b)(9)(A)(i), (B), (C), or (D) —i.e., reprisal for whistleblowing or other protected activities —which could form the basis of an individual right of action appeal. IAF, Tab 2 at 3 & nn.1 -2; see 5 U.S.C. § 1221 .3 NOTICE OF APPEAL RIG HTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). 2 Because the appellant’s petition for review does not present grounds for disturbing the initial decision , we need not decide whether to grant or deny the agency’s motion to file untimely its respon se to the petition for review , nor review or consider the untimely response as part of our analysis. PFR File, Tab s 4-5. 3 We have reviewed the relevant legislation enacted during the pendency of this appeal and have concluded that it does not affect the outcome of the appeal. 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 Although we offer the following summar y of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition f or review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 5 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar da ys after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below : http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the 6 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision . 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 2 0013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washingto n, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the B oard’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for 5 The 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 7 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation 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. 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 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	ASHMAWY_TAREK_E_DE_3443_17_0352_I_1_FINAL_ORDER_1979205.pdf	2022-11-18	null	DE-3443	NP
3,910	https://www.mspb.gov/decisions/nonprecedential/ELDER_CHRISTOPHER_L_DA_0752_15_0171_X_1_FINAL_ORDER_1979253.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CHRISTOPHER L. ELDER , Appellant, v. DEPARTMENT OF THE AI R FORCE, Agency. DOCKET NUMBER DA-0752 -15-0171 -X-1 DATE: November 18, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Christopher L. Elder , Norman, Oklahoma, pro se. David W. Vernon , Esquire, Tinker Air Force Base, Oklahoma, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 On April 25, 2017, the administrative judge issued a compliance initial decision finding the agency in partial noncompliance 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 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 November 22, 2016 Opinion and Order in the appellant’s underlying removal appeal. Elder v. Department of the Air Force , MSPB Docket No. DA-0752 -15- 0171 -C-1, Complian ce File (CF), Tab 8, Compliance Initial Decision (CID). For the reasons discussed below, we now find the agency in compliance and DISMISS the petition for enforcement. DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶2 On November 22, 2016, the Board issued an Opinion and Order affirming a December 8, 2015 initial decision that reversed the appellant’s removal, as modified to apply the correct legal standard for analyzing the appellant’s affirmative defense that the agen cy removed him in retaliation for protected activity. Elder v. Department of the Air Force , 124 M.S.P.R. 12 (2016). The Boar d ordered the agency to cancel the appellant’s removal and reinstate him, effective December 18, 2014, and to provide him with appropriate back pay, interest, and benefits. Id. at ¶¶ 48-49. ¶3 The appellant filed a petition for enforcement of the Opinion a nd Order, and on April 25, 2017, the administrative judge issued a compliance initial decision finding the agency in partial noncompli ance with the Opinion and Order because the agency failed to establish that it provided the appellant with the back pay, interest, and benefits required by the Opinion and Order. CID at 4 -5; CF, Tab 1. The administrative judge ordered the agency to submit evidence demonstrating that it correctly computed and paid the appellant’s back pay, interest, and benefits, and evidenc e explaining the agency’s calculations of the back pay, interest, and benefits due to the appellant. CID at 5. ¶4 On May 31, 2017, the agency submitted a response to the compliance initial decision, which did not contain all of the evidence required by the compliance initial decision. Elder v. Department of the Air Force , MSPB Docket No. DA-0752 -15-0171 -X-1, Compliance Referral F ile (CRF), Tab 1. On September 15, 2017, the Board issued an order directing the agency to submit a 3 detailed narrative explanati on and supporting documentation demonstrating that the agency had correctly computed and paid the appellant’s back pay, interest, and benefits. CRF, Tab 3 at 2 -3. The Board informed the appellant that if he did not file a response within 21 days of the d ate of service of the agency’s submission, the Board might assume he was satisfied and dismiss his petition for enforcement. Id. at 3-4. ¶5 On September 20, 2017, the agency submitted a response to the Board’s order, which did not include all of the evidence and information required by the Board’s September 15, 2017 Order. CRF, Tab 4 at 4 -27. The appellant did not respond to the agency’s submission. ¶6 On January 17, 2018, the Board issued a second order directing the agency to submit a detailed narrative ex planation and supporting documentation demonstrating that the agency had correctly computed and paid the appellant’s back pay, interest, and benefits . CRF, Tab 5 at 4-6. Again, the Board informed the appellant that if he did not file a response within 21 days of the date of service of the agency’s submission, the Board might assume he was satisfied, and dismiss his petition for enforcement. Id. at 7. ¶7 After requesting and being granted an extension of time, on February 23, 2018, the agency submitted the d eclaration of a Branch Chief for Civilian Pay Operations at the Defense Finance and Accounting Service (DFAS) , which provided a detailed narrative explanation of the DFAS’s calculation of the back pay, interest, and benefits due to the appellant, reference d supporting documentation relied on by the DFAS, and identified the total amount of back pay with interest and benefits provided to the appellant, and the dates on which either the DFAS or the agency provided the appellant with the back pay, interest, and benefits. CRF, Tab 10 at 5-13. The appellant did not file a response to this submission, although the Board’s September 15, 2017 and January 17 , 2018 Orders informed him that if he failed to do so, the Board might assume he was satisfied and dismiss the petition for enforcement. CRF, Tab 3 at 3 -4, Tab 5 at 7. 4 ¶8 Accordingly, because the agency has filed evidence of compliance and the appellant has not responded, we assume the appellant is satisfied, find the agency in compliance, and dismiss the petition for enforcement. This is the final decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)). NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this fi nal decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that fo rum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by th e court 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 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition 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 6 you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accesse d through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you r eceive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later tha n 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 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 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). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following addre ss: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particula r relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 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 an appeal to the U.S. Court of Ap peals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services pro vided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	ELDER_CHRISTOPHER_L_DA_0752_15_0171_X_1_FINAL_ORDER_1979253.pdf	2022-11-18	null	DA-0752	NP
3,911	https://www.mspb.gov/decisions/nonprecedential/DE_LOS_REYES_ERIK_DA_0752_15_0322_X_1_FINAL_ORDER_1979295.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ERIK DE LOS REYES, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER DA-0752 -15-0322 -X-1 DATE: November 18, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Christopher H. Bonk , Esquire and Kevin L. Owen , Esquire, Silver Spring, Maryland, for the appellant. Roberto M. Garcia , Esquire, McAllen, Texas, for the appellant. Allison Kay Moody and Mary E. Garza Edinburg, Texas, 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 June 3, 2016 petition for enforcement of the Board’s January 20, 2016 Order in MSPB Docket 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; t he 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 ca se law. See 5 C.F.R. § 1201.117 (c). 2 No. DA -0752 -15-0322 -I-1. De Los Reyes v. Department of Homeland Security , MSPB Docket No. DA -0752 -15-0322 -C-1, Compliance File (CF), Tab 1. On October 31, 2016, the administrative judge issued a compliance initial decision finding the agency not in compliance with the January 20, 2016 Order, and the agency’s noncompliance was referred to the Board for consideration. CF, Tab 10, Compliance Initial Decision (CID). For the reasons discussed below, we now find the agency in compliance and DISMISS the petition for enforcement. ¶2 In the October 31, 2 016 compliance initial decision, the administrative judge found that the agency was not in compliance because it failed to produce evidence that it correctly computed the interest owed to the appellant on all portions of the back pay awarded to him, and fa iled to produce an explanation of how such interest was calculated. CID at 5. As a result, the administrative judge ordered the agency to provide evidence that it correctly computed the interest owed to the appellant on all portions of his back pay, alon g with an explanation of how such interest was calculated. CID at 5-6. ¶3 On December 2, 2016, the agency submitted a pleading in response to the administrative judge’s order. De Los Reyes v. Department of Homeland Security , MSPB Docket No. DA-0752 -15-0322-X-1, Compliance Referral File, Tab 1. The statement included evidence of its interest calculation, along with an explanation of how the interest on the back pay award was calculated. Id. The appellant did not file any response to the agency’s submissi on. Therefore, based on the agency’s submission, we find that the agency is now in full compliance with the Board’s January 20, 2016 Order. ¶4 Accordingly, the Board finds that the agency is 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 Code of Federal Regulations, section 1201.183(b) ( 5 C.F.R. § 1201.183 (b)). 3 NOTICE TO THE APPELLANT REG ARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set out at Title 5 of the United States Code (5 U .S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal. 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 situ ation 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 cla ims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of par ticular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the servic es provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain 5 judicial review of this decision —including a disposition of you r discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your repres entative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex , national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact informat ion for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of 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 6 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it mu st be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option appli es to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices d escribed in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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 Appeal s 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, 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 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for t he Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protecti on Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at the ir respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	DE_LOS_REYES_ERIK_DA_0752_15_0322_X_1_FINAL_ORDER_1979295.pdf	2022-11-18	null	DA-0752	NP
3,912	https://www.mspb.gov/decisions/nonprecedential/HOLDEN_CARL_M_DA_0752_04_0535_X_1_FINAL_ORDER_1979320.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CARL M. HOLDEN, Appellant, v. DEPARTMENT OF THE AI R FORCE, Agency. DOCKET NUMBER DA-0752 -04-0535 -X-1 DATE: November 18, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Kenneth Jones , Macon, Georgia, for the appellant. Jeremiah Crowley , Joint Base Andrews, Maryland, 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 April 21, 2016 petition for enforcement of the Board’s October 1, 2004 Order. On August 3, 2016, the administrative judge issued a compliance initial decision finding the agency not in compliance with the October 1, 2004 Order, and the agency’s 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or 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 noncompliance was referred to the Board for consideration. Holden v. Department of the Air Force , MSPB Docket No. DA -0752 -04-0535 -C-1, Compliance File (CF), Tab 16, Compliance Initial Decision (CID); Holden v. Department of the Air Force , MSPB Docket No. DA-0752 -04-0535 -X-1, Compliance Referral File (CRF), Tab 2. For the reasons discussed below, we find the agency in compliance and DISMISS the appellant’s petition for enforcement. ¶2 In the August 3, 2016 compliance initial decision, the administrative judg e found that the agency was not in compliance with its settlement agreement with the appellant, which was accepted into the record for enforcement purposes in the October 1, 2004 initial decision. CID at 3 -7; Holden v. Department of the Air Force , MSPB Do cket No. DA -0752 -04-0535 -I-1, Initial Appeal File, Tab 17, Initial Decision. The administrative judge found the agency not in compliance because its written records, including the September 2, 2004 barment letter, still contained information regarding the reasons underlying the appellant’s removal, despite the agency’s agreement to remove all such information from its records. CID at 3 -7; CF, Tab 16 at 2 -6. As a result, the administrative judge ordered the agency to take all actions required to be in ful l compliance with the settlement agreement. CID at 7. ¶3 On September 1, 2016, the agency submitted a pleading in response to the administrative judge’s order. CRF, Tab 1. The statement included evidence indicating that the agency: (1) removed the Septe mber 4, 2004 barment letter from the appellant’s official files; (2) removed the flag on the appellant in its “Defense Biometric Identification System”; (3) shredded any additional documents in its possession related to his prior removal; and (4) confirmed with Tinker Air Force Base that it did not have any security files on their base relating to the appellant. Id. at 2. The appellant did not file a response to the agency’s submission. Therefore, based on the agency’s submission, we find that the agency is now in full compliance with the Board’s October 1, 2004 Order. 3 ¶4 Accordingly, the Board finds that the agency is in compliance and dismisses the petition for enforcement. This is the final decision of the Merit Systems Protection Board in this complianc e proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(b) ( 5 C.F.R. § 1201.183 (b)). 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 fou nd 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 HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is mos t 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 pa rticular case. If 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 revie w of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitione rs and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our websi te at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney w ill accept representation in a given case. 5 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such ac tion was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accesse d through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you r eceive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later tha n 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 6 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial 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 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 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following addre ss: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particula r relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Ap peals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services pro vided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	HOLDEN_CARL_M_DA_0752_04_0535_X_1_FINAL_ORDER_1979320.pdf	2022-11-18	null	DA-0752	NP
3,913	https://www.mspb.gov/decisions/nonprecedential/FRAZIER_CYNTHIA_DA_1221_15_0584_W_1_FINAL_ORDER__1978874.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CYNTHIA FRAZIER, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER DA-1221 -15-0584 -W-1 DATE: November 17, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Cynthia Frazier , Ruston, Louisiana, pro se. Patrick A. Keen , Shreveport , Louisiana , for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which denied her 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 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 durin g either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now th e Board’s final d ecision. 5 C.F.R. § 1201.113 . We FORWARD the appellant’s November 22, 2016 request to file a new IRA appeal to the Board’s Dallas Regional Of fice for docketing as a ne w IRA appeal. BACKGROUND ¶2 The following background information, as recited in the initial decision, is generally undisputed. Initial Appeal File (IAF), Tab 26, Initial Decision (ID). The appellant began working for the agency in October 2010 as a Dietician Food Service Supervisor in the Nutrition and Food Services (NFS) department. ID at 2; IAF, Tab 7 at 8. During the relevant time frame, the appellant was supervised by the NFS Chief, T.L., and her second -line supervisor was the Associa te Director , Y.J. ID at 2. There were various problems in NFS, which led to a fact-finding inquiry in the 2012 -2013 timeframe. Id. ¶3 On October 23, 2014, T.L. issued to the appellant a letter of admonishment for conduct unbecoming a supervisor. ID at 3; IAF, Tab 7 at 179-80. On November 20, 2014, T.L. issued to the appellant a minimally satisfactory annual performance rating. ID at 4; IAF, Tab 7 at 114, 195 , 198 . In February 2015, the agency convened an Administrative Investigation Board (AIB) to inv estigate 3 allegations of a hostile work environment in NFS. ID at 5; IAF, Tab 9 at 11-13. As a result of the ongoing AIB investigation, on March 17, 2015, the appellant was detailed to the Nursing Service for a period not to exceed 90 days. ID at 5-6; IAF, Tab 9 at 15. The AIB issued a preliminary statement , which concluded, in pertinent part, that the appellant “fosters a work environment of distrust of management among her staff ” and recommended that she be reassigned out of NFS. ID at 5; IAF, Tab 9 at 18-29. The Interim Medical Center Director concurred with the AIB findings and recommendations. ID at 5; IAF, Tab 9 at 29-30. ¶4 The appellant filed an IRA appeal, alleging that the agency retaliated against her for making whistleblowing disclosures when it issued the letter of admonishment, gave her the minimally satisfactory performance rating , detailed her to the Nursing Service , and subjected her to a hostile work environment .2 ID at 7, 10 -11; IAF, Tab 1. The administrative judge held a hearing. ID at 1; IAF, Tab 25. In a 41 -page initial decision, the administrative judge found that the Board has jurisdiction over the IRA appeal . ID at 7-12. The administrative judge further found that the appellant proved by preponderant evidence that she made protected whistleblowing disclosures on May 7, 2014, and July 17, 2014 , when she disclosed to the Acting Chief of Human Resources and the Vete rans Integrated Service Network 16 Director, respectively, that T.L. abused her authority.3 ID at 13-25; IAF, Tab 7 at 57-58, 61 -62. The administrative judge 2 The administrative judge noted in the initial decision that the appellant raised additional personnel actions in the Board appeal, such as a nonselection and a detail to a position that was locat ed in an area with fungus from pigeon feces, but she concluded that the appellant did not exhaust these alleged personnel actions with the Office of Special Counsel (OSC). ID at 11 n.3. The appellant has not challenged that finding on review. 3 The app ellant does not challenge the administrative judge’s finding that she did not exhaust her administrative remedy with OSC regarding her correspondence with Congress about a hostile work environment. ID at 24-25; IAF, Tab 7 at 38-40. We affirm the administ rative judge’s analysis in this regard. 4 further found that these two disclosures were contributing factor s in the agency’s decision to issue the letter of admonishment and minimally satisfactory performance rating and to detail the appellant to the Nursing Service . ID at 25-27. The administrative judge found, however, that the agency proved by clear and convincing evidence that it would have taken the same actions in the absence of the appellant’s whistleblowing disclosures. ID at 27-36. Accordingly, she denied the appellant’ s request for corrective action. ID at 36. ¶5 The appellant has filed a petition for review, and the agency has filed a response. Petition for Review (PFR) File, Tabs 1, 4. The appellant also has filed a request to file a new IRA appeal. PFR File, Tab 5. We forward that submission to the Dallas Regional Of fice for docketing as a new IRA appeal. DISCUSSION OF ARGUME NTS ON REVIEW ¶6 To establish a prima facie case of reprisal under the Whistleblower Protectio n Enhancement Act of 2012 , the appellant must pr ove by preponderant evidence that : (1) she made a disclosure described under 5 U.S.C. § 2302 (b)(8) or engaged in protected activity described under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D) , 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).4 Webb v. Department of the Interior , 122 M.S.P.R. 248 , ¶ 6 (2015). If the appellant makes out a prima facie case, the agency is given an opportunity to prove, by clear and convincing evidence, that it would have taken the same personnel action absent the protected whistleblowing disclosure s or protected activity . Id.; 5 U.S.C. § 1221 (e)(2). 4 Neither party has challenged the administrative judge’s conclusion that the appellant proved by preponderant evidence that she made protected whistleblowing disclosures on May 7, 2014, and July 17, 2014, and that these disclosures were a contributing factor in the agency’s decision to take various personnel actions against her. ID at 13-27. We affirm these findings herein. 5 ¶7 In determining whether an agency has met its burden by clear and convincing evidence ,5 the Board co nsiders the following (Carr 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 in volved 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. Alarid v. Department of the Army , 122 M.S.P.R. 600, ¶ 14 (2015 ); see Carr v. Social Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999) .6 ¶8 On review, the appellant appears to challenge only the administrative judge’s analysis of the first and second Carr factors .7 For example, she challenges the administrative judge’s credibility determinations and assert s that the administrative judge improperly weighed the testimony of her witnesses. PFR File, Tab 1 at 5. S he also contends that the AIB was “inappropriately” organized and conduc ted by T.L. and Y.J. and served as a “witch -hunt” against her because 5 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. 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 Whistleblo wer 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. 113-70, 128 Stat. 1894, and eventually made permanent in the All Circuit Review Act, Pub. L. No. 115-195, 128 Stat. 1510, appellants may file petitions for judicial review of Board decisions in whistleblower reprisal cases with any circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703 (b)(1)(B). We are unaware of other circuit courts that have considered this issue. 7 The appellant does not appear to challenge the administrative judge’s discussion of evidence that T.L. took similar actions against similarly situated employees who di d not make whistleblowing disclosures or her conclusion that there was no evidence that similarly situated employees who were not whistleblowers were treated more favorably. ID at 32-33, 36. We affi rm the initial decision in this regard . 6 of her whistleblowing disclosures.8 PFR File, Tab 1 at 4. She further asserts that the 14 employees the AIB interviewed were inappropriately selected by T.L. , and some of them were mot ivated to provide false testimony against her. Id. We have considered these arguments, but we conclude that a different outcome is not warranted. ¶9 For example, the appellant asserts that she conducted herself in a “very professional manner at all times” and never engaged in conduct unbecoming a supervisor . Id. at 5-6. She contends that T.L. was a “professional actress” and that T.L. and Y.J. committed perjury . Id. at 5. Finally, she allege s that the 5 witnesses who testified on her behalf and the 25 witnesses who were not permitted to testify demonstrate that she was not the employee causing problems in NFS . Id. ¶10 The administrative judge made numerous demeanor -based credibility determinat ions in the initial decision. In particular, the administrative judge found that T.L. and Y.J. credibly described the appellant’s various performance deficiencies and the reason s that the appellant had to be detailed out of NFS . ID at 31-33. The Board defers 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 , overturn ing such determinations only when it has sufficiently sound reasons for doi ng so. See Haebe v. 8 The appellan t appears to assert on review that the 2012 -2013 inquiry concerning similar allegations in NFS also was undertaken in retaliation for he r whistleblowing disclosures. PFR File, Tab 1 at 4; ID at 13-14. However, the inquiry predated both of the disclosures that the administrative judge found protected , and thus, the se disclosures could not have been a factor in the agency’s decision to undertake the inquiry. See, e.g., Davis v. Department of Defense , 106 M.S.P.R. 560, ¶ 12 (2007) (stat ing that because the complained -of personnel action predated the protected disclosure, there was no way the disclosure could have contributed to the pers onnel action), aff’d , 278 F. App’x 1009 (Fed. Cir. 2008). Because the appellant does not challenge the administrative judge’s conclusion regarding which of her disclosures were protected whistleblowing disclosures, we need not consider this argument on review. 7 Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) . The appellant has failed to identify such sufficiently sound reasons here . ¶11 The appellant also contends that the administrative judge told her during a prehearing conference call that she would “assume” that the 25 other witnesses that the appellant wanted to present on her behalf would have testified in a similar manner to the 5 witnesses who were permitted to testify. PFR File, Tab 1 at 5. She appears to assert that, taken together, these 30 statements “spoke volumes” about the character of Y.J. and T.L. Id. Contrary to the appellant’s assertion , in the order and summary of the prehearing conference call, the administrative judge acknowledged only that the appellant stated that the other witnesses’ testimony would have been duplicative of the witnesses approved to testify at the hearing . IAF, Tab 23 at 5. We discern no error with the administrative judge’s decision to limit the number of witnesses testi fying on the appellant’s behalf. See Franco v. U.S. Postal Service , 27 M.S.P.R. 322, 325 (1985) (explaining that an administrative judge has wide discretion under 5 C.F.R. § 1201.41 (b)(8) to exclude witnesses wh en it has not been shown that their testimony would be relevant, material, and nonrepetitious ). Because the appellant did not present affidavits or sworn statements from any of the 25 other witnesses, we also discern no error with the administrative judge’s evaluation of the witness es’ testimony . ¶12 The appellant further asserts that the Chair of the 20 12-2013 inquiry testified that the appellant was not the cause of the distrust and discord in NFS. PFR File, Tab 1 at 5-6. The administrative judge noted in the initial decision that the food service workers that the Chair interviewed as part of that inquiry voiced concerns about T.L. and other supervisors but not the appellant , and the outcome of this inquiry was that NFS had a “ dysfunctional environment.” ID at 14, 29 -30. However, the administrative judge did not explicitly mention or discuss the Chair’s testimony in h is consideration of the Carr factors. We have considered this evidence, see Whitmore v. Department of Labor , 680 F.3d 1353 , 1368 (Fed. Cir. 2012), but we find that it does not outwei gh th e strong evidence that supports 8 the agency’s action, particularly the r esults of the 2015 AIB, which essentially superseded any conclusions reached as a result of the 2012 -2013 inquiry. ¶13 Although not explicitly mentioned in the initial decision, T.L. and Y.J. could have had a motive to retaliate against the appellant be cause her protected disclosures concerned T.L.’s allegedly harassing behavior . IAF, Tab 7 at 57-58, 61-62; 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 criticism reflecting on them both in their capacity as managers and employees is sufficient to establish a substantial retaliatory motive) . However, th e administrative judge evaluated the demeanor of T.L. and Y.J., and she found that they credibly denied taking the personnel actions at issue because of any retaliatory animus ; instead, they testified that they took the actions because of the appellant’s performance deficiencies and the results of the 2015 AIB investigation . ID at 27-36. Here, too, the appellant has not presented sufficiently sound reasons for overturning the administrative judge’s credibility determinations in this regard . See, e.g., Purifoy v. Department of Veterans Affairs , 838 F.3d 1367 , 1373 (Fed. Cir. 2016) (finding that the Board should have deferred to the administrative judge’s findings about the appellant’s potential for rehabilitation, which were necessarily intertwined with issues of credibility and an analysis of his demeanor at trial). ¶14 The appellant devotes most of her petition for review to challenging the 2015 AIB and its conclusions and recommendations. PFR File, Tab 1 at 4-7. For example, she argues that the AIB was “inappropriately conducted” by Y.J. and T.L., she generally disagrees with the AIB’s findings and recommendations , she asserts that some of its findings were based on false statements , and she contends that the employees that she su pervised were not interviewed . Id. at 6. These arguments are unavailing. ¶15 The record reflects that the Interim Medical Center Director asked the Equal Employment O pportunity Manager to convene an AIB to investigate allegations 9 of a hostile work environment in NFS. IAF, Tab 9 at 11-13. There is no evidence that the Interim Medical Center Director was improperly influenced by T.L. or Y.J. or otherwise had an ulterior motive when he made the request to convene the AIB. To the contrary, the Interim Medical Center Director adopted the recommendation from the Grievance Examiner that the appellant’s challenge to the letter of admonishment and a nnual performance rating had merit , and he rescinded the letter of admonishment and changed her performance rating to fully successful. IAF, Tab 7 at 50, 106, 108 -11. Moreover , the ongoing issues in NFS, including the tension between T.L. and the appella nt over a period of several years , provide d a basis to convene an AIB . PFR File, Tab 1 at 5; ID at 14; IAF, Tab 7 at 64; IAF, Tab 9 at 19 (finding in the AIB report that the “work environment in [NFS] is at a minimum dysfunctional with respect to the work ing relationship between [T.L. and the appellant] and discord being created by [the appellant] and a cadre of [NFS] staff . . . and at a maximum may rise to the level of a hostile work environment”) . ¶16 The AIB, which was conducted from March 10-12, 2015, received sworn testimo ny from 12 NFS staff members, including the appellant and T.L., and 2 non-NFS staff members (who were involved in the earlier 2012 -2013 fact-finding inquiry) . IAF, Tab 9 at 18. The appellant has presented no persuasive evidence that the manner in which the AIB was convened, the individuals that were selected to participate in the AIB, the evidence presented to the AIB, and/ or the AIB’s findings and recommendations9 violated or were otherwise inconsistent with any agency policy or pro cedure. Accordingly , we discern no error with the 9 For instance, the AIB found, among other things, that the appellant “demonstrates through behavior and interaction with staff under her direct supervi sion that she should not be a supervisor.” IAF, Tab 9 at 24. The AIB also recommended that the appellant be reass igned to another area “ to reduce ongoing conflict” in NFS and that the agency arrange for job counseling for her to include “awareness of con flict-producing behaviors and alternatives for positive supervisory outcomes.” Id. at 29. 10 administrative judge’s discussion of the AIB’s findings and recommendations in her analysis of the Carr factors . ID at 33-35. ¶17 We have considered the appellant’s arguments on review, but the lengthy and detailed initial decision reflects the administrative judge’s careful consideration of the relevant evidence. We agree with the administrative judge that the agency proved by clear and convincing evidence that it would have taken the same personnel action s in the absence of the appellant’s whistleblowing disclosures. We therefore affirm her decision to deny the app ellant’s request for corrective action.10 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 review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described b elow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies t o your particular case. If you have questions 10 We have reviewed the relevant legislation enacted during the pendency of this appeal and have concluded that it doe s not affect the outcome of the appeal. 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 op tion is most appropriate in any matter. 11 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judic ial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 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 12 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and 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/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 13 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.12 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 12 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent j urisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 201 8, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 14 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the F ederal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection B oard appellants before the Federal Circuit. The 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	FRAZIER_CYNTHIA_DA_1221_15_0584_W_1_FINAL_ORDER__1978874.pdf	2022-11-17	null	DA-1221	NP
3,914	https://www.mspb.gov/decisions/nonprecedential/ABRAMS_MARLENE_R_CB_7521_15_0031_T_1_FINAL_ORDER_1978877.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MARLENE R. ABRAMS , Appellant , v. SOCIAL SECURITY ADMINISTRATION , Agency . DOCKET NUMBER CB-7521 -15-0031 -T-1 DATE: November 17, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Marlene R. Abrams , Chicago, Illinois, pro se. Patrick W. Carlson , Esquire, Chicago, Illinois, for the agency . Sharese M. Reyes , Esquire, Atlanta, Georgia, for the agency . BEFORE Cathy A. Harris, Vice Chairman Raym ond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant, an administrative law judge (ALJ) , has filed a petition for review of the initial decision, which dismissed the appeal for lack of jurisdiction . 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not requ ired to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 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). BACKGROUND ¶2 The Social Security Administratio n (SSA) filed two complaints with the Board , seeking to suspend and remove the appellant , respectively, from her ALJ position based on charges of failure to follow instructions, unacceptable docket management, neglect of duties, and medical inability to pe rform , and the appellant raised affirmative defenses of disability discrimination in both matters .2 Social Security Administration v. Abrams , MSPB Docket Nos. CB-7521 -13-0008 -T-1, CB -7521 -14-0004 -T-1. In February 2013, d uring 2 The ALJ assigned to adjudicate these matters joined the appeals and found that SSA proved the charges of unacceptable docket management and medical inability to perform, that the appellant, who was the respondent in those matters, did not prove her affirmative defenses of disability discrimination, and that SSA had good cause to remove her. Social Security Administration v. Abrams , MSPB Docket No s. CB -7521 - 13-0008 -T-1, CB-7521 -14-0004 -T-1, Initial Decision (Apr. 12, 2016). Ms. Abrams and SSA have filed a petition for review and a cross petition for review, respectively , of the initial decision . Those matters are currently pending before the Board, and we will address the arguments contai ned therein in a separate decision . 3 the pendency of the first Board appeal, the appellant contacted an equal employment opportunity (EEO) counselor to report discrimination based on disability, religion , and harassment, among other things . Social Security Administration v. Abrams , MSPB Docket No. CB -7521 -15-0031 -T-1, Initial Appeal File (IAF), Tab 6 at 18 -34. The appellant subsequently filed a formal EEO complaint, alleging discrim ination based on disability, religion , and a hostile work environment. Id. at 6-14. On August 25, 2014, an Equal Employment Opportunity C ommission administrative judge dismissed the appellant ’s discrimination complaint “with prejudice for lack of jurisdiction as a mixed case” due to the pending Board matters and ordered SSA to dismiss the complaint. Id. at 35 -39. On February 9, 2015,3 SSA issued a final agency decision (FAD) on the appellant ’s discrimination complaint , finding that SSA did not discriminate against her based on disability, religion, or reprisal . Id. at 56-103. ¶3 On April 20, 2015, SSA rescinded the FAD because it did not c omply with the administrative judge’s order and it gave the appellant incorrect appeal rights . Id. at 107. SSA reissued the FAD on the same date . Id. at 107 -14. The reissued FAD dismissed the appellant ’s discrimination complaint “because the same matter was first raised before the MSPB .” Id. at 112 (citing 29 C.F.R. § 1614.107 (a)(4)) . The reissued FAD noted that the appellant could file an appeal with the Board or a civil acti on in a U.S. district court. IAF, Tab 6 at 112. ¶4 In May 2015 , the appellant filed a submission with the Board , entitled “Notice of Appeal,” which we construe d as an appeal of the reissued FAD . IAF, Tab 1. The ALJ issued an initial decision in which he di smissed the appeal for lack of jurisdiction because the appellant did not have the right to appeal the FAD to the Board . IAF, Tab 25, Initial Decision (ID). The appellant has filed a 3 It appears that the final agency decision was mistakenly dated February 9, 2014 . IAF, Tab 6 at 56. 4 petition for review, SSA has filed a response, and the appellant has filed a reply. Petition for Review (PFR) File, Tabs 3, 7 -8. DISCUSSION OF ARGUME NTS ON REVIEW ¶5 The Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule , or regulation . Maddox v. Merit Systems Protect ion Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). As noted above, the appellant raised claims of disability discrimination in the other pending Board ap peals. She has not cited on review , nor are we aware of, any source of Board jurisdiction over SSA’s dismissal of her discrimination complaint as a mixed case under these circumstances . See, e.g. , Social Security Administration v. Harty , 96 M.S.P.R. 65, ¶¶ 15-16 (2004) (finding that the respondent did not have Board appeal rights from SSA’s decision to dismiss his discrimination complaints because he elected the Board as his preferred forum for evaluating his discrimination claims) . Even though the FAD advised the appe llant that she could appeal the dismissal of her complaint to the Board, this error does not confer Board jurisdiction over this appeal . Jundt v. Department of Veterans Affairs , 113 M.S.P.R. 688, ¶ 2 n.2 (2010); Scott v. Department of the Air Force , 113 M.S. P.R. 434, ¶ 9 (2010). Accordingly, we affirm the ALJ’s decision to dismiss the appeal for lack of jurisdiction. NOTICE OF APPEAL RIG HTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the follow ing summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights in cluded in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 5 appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding wh ich cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicab le time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particula r forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with t he U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition 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 6 for Merit Systems Protection Board appellants before the 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 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 7 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washi ngton, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW 12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no chal lenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review e ither with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for 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 case s with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 8 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “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. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	ABRAMS_MARLENE_R_CB_7521_15_0031_T_1_FINAL_ORDER_1978877.pdf	2022-11-17	null	CB-7521	NP
3,915	https://www.mspb.gov/decisions/nonprecedential/RIOS_RIVERA_ISABEL_NY_0752_16_0316_I_1_REMAND_ORDER_1978970.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ISABEL RIOS -RIVERA, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER NY-0752 -16-0316 -I-1 DATE: November 17, 2022 THIS ORDER IS NONPRECEDENTIAL1 Marcos Gabriel Morales -Sbert , Esquire, San Juan, Puerto Rico, for the appellant. Ana M. Margarida , San Juan, Puerto Rico, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Lea vitt, Member REMAND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which treated her separation as a removal action and affirmed that action . For the reasons discussed below, we GRANT the appellant’s petition for review , 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administr ative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 VAC ATE the initial decision, and REMAND the case to the field office for further adjudication in accordance with this Remand Orde r. BACKGROUND ¶2 On August 24, 2016, the appellant received notice of the agency’s decision to remove her effective August 26, 2016, from her Social Worker position , based on seven charges of alleged misconduct. Initial Appeal File (IAF), Tab 1 at 4, Tab 9 at 13 -15. T he appellant resigned , effective August 25, 2016, after receiving notice of the agency’s decision to remove her . IAF, Tab 9 at 13 -15, Tab 1 5 at 13. ¶3 The appellant filed a Board appeal of the removal decision and did not request a hearing. IAF, Tab 1 at 1-6. She raised claims of harmful procedural error and a violation of her due process rights. IAF, Tab 10 at 3, Tab 12 at 2, Tabs 14, 19. ¶4 Based on the written record, the administrative judge issued an initial decision treating the appellant’s separation as a removal action, which she affirmed . IAF, Tab 22, Initial Decision (ID) at 2, 6, 25. Specifically, the administrat ive judge sustained the charged misconduct, found a nexus between the sustained misconduct and the efficiency of the service, and determined that the penalty of removal was within the tolerable limits of reasonableness. ID at 7-18, 20 -25. She further fou nd that the appellant failed to prove her affirmative defense of harmful procedural error. ID at 18 -20. ¶5 The appellant has filed a petition for review challenging the initial decision and reasserting a violation of her due process rights . Petition for Rev iew (PFR) File, Tab 1. The agency has filed a response opposing her petition . PFR File, Tab 3. 3 DISCUSSION OF ARGUME NTS ON REVIEW This appeal must be remanded for a jurisdictional determination. ¶6 The Board’s jurisdiction is limited to those matters over wh ich it has been given jurisdiction by law, rule, or regulation . Maddox v. Merit Systems Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985) . The appellant bears the burden of proving by preponderant evidence the Board’s jurisdiction over her appeal. 5 C.F.R. § 1201.56 (b)(2)(i)(A). Generally, an appellant is entitled to a jurisdictional hearing if she raises nonfrivolous allegations2 of Board jurisdiction. Edwards v. Department of the Air Force , 120 M.S.P.R. 307 , ¶ 6 (2013). ¶7 There remains a question whether the Board has jurisdiction over this appeal. Although the parties have not raised this issue , PFR File, Tabs 1, 3, the issue of the Board’s jurisdiction may be raised at any time during a proceedi ng, Morgan v. Department of the Navy , 28 M.S.P.R. 477 , 478 (1985). Further, the Board has inherent authority to determine whether a matter is withi n its jurisdiction. Lloyd v. Small Business Administration , 96 M.S.P.R. 518 , ¶ 16 (2004). Therefore, we find that it is appropriate to raise the jurisdictional issue here. ¶8 The administrative judge found that , because the appellant resigned 1 day before the scheduled effective date of her removal, the Board has jurisdiction to adjudicate the agency’s removal action re gardless of the voluntariness of her resignation . ID at 6. In so finding, the administrative judge cited 5 U.S.C. § 7701 (j) and Mays v. Department of Transportation , 27 F.3d 1577 , 1579 -81 (Fed. Cir. 1994). ID at 6. Section 7701(j) provides : In determining the appealability under this section of any case involving a removal from the service (other than the removal of a reemployed annuitant), neither an individual’s status under any retirement system established by or under Federal statute nor any 2 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4 (s). 4 election made by such indivi dual under any such system may be taken into account . The plain meaning of this provision is that the Board may not base its jurisdictional determination in a removal appeal on whether the appellant retired when faced with a final removal decision. Paula v. Social Security Administration , 119 M.S.P.R. 138, ¶ 12 (2013). In Mays , 27 F.3d at 1579-81, our reviewing court held that the Board had jurisdiction under 5 U.S.C. § 7701 (j) over the appellant’s removal appeal when she retired on the effective date of her removal . ¶9 However , we find that 5 U.S.C. § 7701 (j) and the holding in Mays do not apply to the instant appeal because the appellant here did not retire but resigned prior to the effective date of her removal . IAF, Tab 13 at 4, T ab 15 at 13; Baldwin v. Department of Veterans Affairs , 111 M.S.P.R. 586 , ¶ 41 (2009) ; see, e.g., Quiet v. Department of Transportation , 104 M.S.P.R. 292, ¶¶ 5, 9-10 (2006) (remanding the appellants’ appeals for the administrative judge to adjudicate them as involuntary resignation/constructive removal appeals when the record reflected that the appellants were separated from service as a result of their resignations prior to the effective date of the agency’s removal actions) . Thus , we find that the adm inistrative judge erred in adjudicating the appellant’s resignation as a removal, and we vacate the initial decision. ¶10 An employee -initiated action, such as a resignation, is presumed to be voluntary and thus outside the Board’s jurisdiction. Searcy v. Dep artment of Commerce , 114 M.S.P.R. 281, ¶ 12 (2010). However, an employee may establish Board jurisdiction over an involuntary resignation as a constructive removal by proving that she lacked a meaningful choice in the matter and the agency’s wrongful actions deprived her of that choice. Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶¶ 7-8, 11 (2013). An employee can establish involuntariness by proving , for example, that the agency obt ained the resignation through duress , coercion , misinformation , or de ception . Searcy , 114 M.S.P.R. 281, ¶ 12; 5 Baldwin , 111 M.S.P.R. 586 , ¶ 15. The fact that an employee is faced with the unpleasant choice of resigning or being subject to removal for cause does not rebut the presumed voluntariness of her ultimate choice of resignation . Schultz v. U.S. Navy , 810 F.2d 1133 , 1136 (Fed. Cir. 1987). However, “[i]f an employee can show that the agency knew [or should h ave known] that the reason for the threatened removal could not be substantiated, the threatened action by the agency is purely coercive.” Id. at 1136 -37. Moreover, intolerable working conditions may render an action involuntary if the employee demonstra tes that the agency engaged in a course of action that made working conditions so difficult or unpleasant that a reasonable person in that employee’s position would have felt compelled to resign. Searcy , 114 M.S.P.R. 281, ¶ 12. ¶11 Here, t he administrative judge did not iss ue a jurisdictional notice , and neither the initial decisi on nor the agency’s submissions put the appellant on notice that she might be required to prove Board jurisdiction over her resignation as a constructive removal. IAF, Tabs 9, 15; see Burgess v. Merit Systems Protection Board , 758 F.2d 641 , 643 -44 (Fed. Cir. 1985) (finding that an appellant must receive explicit information on what is required to establish an appealable j urisdictional issue). Therefore, we remand this appeal for the administrative judge to provide the appellant with notice of the jurisdictional requirements described above and an opportunity to establish jurisdiction . See, e.g., Burgess , 758 F.2d at 643 -44. After apprising the appellant of the proper jurisdictional issues, the administrative judge shall provide her with an opportunity to request a jurisdictional hearing and to submit evidence and argument on those issues .3 3 In her petition for review, the appellant reasserts her argument that the agency violated her due process rights. PFR File, Tab 1 at 1 -11; IAF, Tab 12 at 2, Tab 14 at 6, Tab 19. She also disputes the administrative judge’s findin gs regarding the charged misconduct, hearsay evidence, harmful procedural error, nexus, and the removal penalty. PFR File, Tab 1. We find it is inappropriate to decide these issues at this time when it is unclear that these claims are within the Board’s jurisdiction. See Evans v. 6 ORDER ¶12 For the reasons discussed above, we remand this case to the field office for further adjudication in acc ordance with this Remand Order. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board Department of Veterans Affairs , 119 M.S.P.R. 257 , ¶ 5 (2013) (stating that the Bo ard first must resolve the threshold issue of jurisdiction before proceeding to the merits of an appeal). The appellant may re raise her arguments on remand to the extent they are relevant in a constructive removal appeal .	RIOS_RIVERA_ISABEL_NY_0752_16_0316_I_1_REMAND_ORDER_1978970.pdf	2022-11-17	null	NY-0752	NP
3,916	https://www.mspb.gov/decisions/nonprecedential/ABRAMS_MARLENE_R_CB_7521_13_0008_T_1_FINAL_ORDER_1978984.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SOCIAL SECURITY ADMINISTRATION, Petitioner, v. MARLENE R. ABRAMS, Respondent . DOCKET NUMBER S CB-7521 -13-0008 -T-1 CB-7521 -14-0004 -T-1 DATE: November 17, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Michelle M . Murray , Esquire, and Sharese M. Reyes , Esquire, Baltimore, Maryland, for the petitioner . Patrick W. Carlson , Chicago, Illinois, for the petitioner . Julie M. Brady , Esquire, Peter H. Noone , Esquire, Robert Fedder , Esquire, Sean M. Foley , Esquire, Belmont, Massachusetts, 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 dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). . 2 FINAL ORDER ¶1 The respondent administrative law judge ( respondent ) has filed a petition for review , and the Social Security Administration (SSA or petitioner ) has filed a cross petition for review , of the initial decision, which sustained charges of unacceptable docket management and medical inability to perform , found that the respondent did not prove her disability discrimination claims, and determined that SSA had good cause to remove the respondent. 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 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 affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201 .115 ). After fully considering the filings in this appeal, we conclude that neither party has established any basis under section 1201.115 for granting the petition or cross petition for review. Therefore, we DENY t he petition for review and the cross petition for review. We MODIFY the initial decision to find that the respondent has not proven her claim of disability harassment, but a different outcome is not warranted . Except as express ly MODIFIED by this Final Order, we AFFIRM the initial decision . BACKGROUND ¶2 SSA proposed to suspend the respondent for 30 days based on a charge of failure to follow instructions. Social Security Administration v. Abrams , MSPB Docket No. CB-7521 -13-0008 -T-1, Initial Appeal File ( 0008 IAF), Tab 1. SSA subsequently proposed to remove the respondent based on charges of medical 3 inability to perform, unacceptable docket management, neglect of duties, and failure to follow instructions. Social Security Administration v. Abrams , MSPB Docket No. CB-7521 -14-0004-T-1, Initial Appeal File (0004 IAF), Tab 1. The administrative law j udge (ALJ) who was assigned to adjudicate this matter joined these appeals. 0008 IAF, Tab 85. A multi -day hearing was held. Hearing Transcripts (HTs) 1 -13. The ALJ granted the resp ondent’s request to merge the charges of unacceptable docket management and neglect of duties. 0008 IAF, Tab 162 at 10-11, Tab 166. The ALJ issued an initial decision in which he made the following findings: (1) SSA proved the unacceptable docket manage ment and medical inability to perform charges; (2) SSA did not prove either of the failure to follow instructions charges ; (3) the respondent did not prove her disability discrimination claim s; and (4) SSA demonstrated good cause to remove the respondent. 0008 IAF, Tab 175, Initial Decision ( ID) at 17-55. ¶3 The respondent has filed a petition for review, SSA has filed a response, and the respondent has filed a reply brief. Social Security Administration v. Abrams , MSPB Docket No. CB-7521 -13-0008 -T-1, Petition fo r Review (PFR) File, Tabs 3, 8-9.2 SSA also has filed a cross petition for review, the respondent has filed a response, and SSA has filed a reply brief.3 PFR File, Tabs 8, 10, 12. DISCUSSION OF A RGUMENTS ON REVIEW ¶4 In her petition for review, the respondent argues that the ALJ erred in analyzing the unacceptable docket management charge , and she cites to “new” 2 For consistency, we will only cite to the parties’ submissions on review in MSPB Docket No. CB-7521 -13-0008 -T-1. 3 The agency filed a motion for additional time to file a reply brief , and it filed a reply brief. PFR File, Tabs 11-12. Although our regulations do not provide for a reply to a response to a cross petition for review, we have considered the agency’s reply brief . 4 evidence in support of this argument.4 PFR File, Tab 3 at 15-17. She also asserts that the ALJ improperly analyzed her claims of disability discrimination and harassment and the relevant factors for determining if SSA had good cause to remove her. Id. at 8-14, 17-26. She further asserts that the ALJ improperly joined the appeals and issued a protective order.5 Id. at 5-8. In its cross petition for review, SSA asserts that the ALJ improperly analyzed the failure to follow instructions charges. PFR File, Tab 8 at 23-26. For the following reasons, we deny the petit ion for review and cross petition for review, and we affirm the initial decision as modified herein . SSA proved the unacceptable docket management charge .6 ¶5 In the unacce ptable docket management charge, SSA alleged that in fiscal year (FY) 2012, the res pondent only held approximately 160 hearings , only iss ued approximately 144 decisions , and failed to move cases timely through 4 The respondent does not appear to challenge the ALJ’s conc lusion that SSA proved the charge of medical inability to perform. ID at 35-42. We affirm the ALJ’s conclusion herein. See Fox v. Department of the Army , 120 M.S.P.R. 529, ¶ 25 (2014) (explaining that , to establish a charge of physical inability to perform, the agency must prove a nexus between the employee’s medical condition and observed deficiencies in her performance or conduct, or a high probability, given the nature of the work involved, that her condition may result in injury to herself or others) . 5 The respondent raises arguments concerning a third appeal. PFR File, Tab 3 at 14-15; see Abrams v. Social Security Administration , MSPB Docket No. CB-7521 -15-0031 - T-1. The Board denied Ms. Abrams’ petition for review of the initial decision in that matter. Abrams v. Social Security Administration , MSPB Docket No. CB-7521 -15- 0031 -T-1, Final Order (Nov. 17, 2022) . 6 The ALJ defined the charge of “unacceptable docket management” as managing a docket in a way that prevents an ALJ from meeting, or striving for, SSA’s benchmarks and goals. ID at 21 n.3. The ALJ further found that in order to prove the charge, SSA must s how that the respondent had a duty to acceptably manage her docket, she failed to acceptably manage her docket, and the criteria relied upon by SSA allows measur ing her performance in a way that sufficiently establishes she was performing inadequately. ID at 21-22. The respondent does not challenge the ALJ’s definition of unacceptable docket management or the elements of the charge . 5 ALJ-controlled statuses . 0004 IAF, Tab 1 at 16-17. SSA further alleged that in FY 2013, the respondent held approximately only 66 hearings , issued approximately only 81 decisions, and failed to move cases timely through ALJ-contro lled statuses. Id. In the initial decision, the ALJ reviewed SSA’s expectations for production in terms of hearings held, decisions issued, and number of cases languishing in ALJ -controlled statuses, the respondent’s low productivity during the relevant time frame s, SSA’s “extraordinary” efforts to assist her with docket management, and the respondent’s explanations for her poor production. ID at 22-33. The ALJ concluded that the respondent was unable to effectively manage her docket and that SSA proved this charge. ID at 33-35. ¶6 We agree with the ALJ that SSA proved this charge. The record reflects that, during the relevant time frames, SSA maintai ned benchmarks or goals of 500-700 case dispositions per year , an average of 50 scheduled hearings per month, and 7 days in ALJ post -hearing review (ALPO ) status. 0008 IAF, Tab 171 at 63, 66; HT 4 at 1011, 1017 -18, 1026. The respondent’s production in terms of hearings held and decisions issued fell well below these goals. ID at 11-12. In particular, SSA’s evidence showed that, in FY 2012, the average days that a case on the respondent’s docket was in ALPO status was 250 days, as compared to an average of 32 days for all of the ALJs in SSA’s Chicago Hearing Office (except the respondent) , and an average of 15 -16 days for ALJs in Region V and nationally . 0008 IAF, Tab 173 at 284; HT 3 at 932-34. SSA’s evidence further revealed that, in FY 2013, the average number of days that a case on the respondent’s docket remained in ALPO status was 323 days, compared to an average of 35 days for ALJs in the Chicago Hearing Office, an average of 14 days for ALJs in Region V, and 16 days for ALJs nationally . 00 08 IAF, Tab 173 at 284; HT 3 at 934-36. ¶7 The respondent contends on review that the underlying statistical models were flawed because SSA’s data did not consider certain critical variables, such 6 as the complexity of each individual case, whether an ALJ had physical or mental disabilities, whether cases resulted in a favorable or unfavorable decision, and whether an ALJ received a reasonable accommodation . PFR File, Tab 3 at 15-16. The respondent references a Work Analysis Study commissioned by the Association of Administrative Law Judges (AALJ) (hereinafter , AALJ Work Analysis Study ), which was issued after the close of the record below .7 PFR File, Tab 3 at 17. In its response to her petition, SSA asserts that the information contained in the AALJ Work Analysis Study concerning ALJ adjudications in fiscal years 2012 and 2013 was available and introduced before the close of the record, and the AALJ Work Analysis Study had not been found to satisfy reliability standards . PFR File, Tab 8 at 9-10 & n.4. ¶8 We need not resolve this evidentiary issue. Even if we assumed for the purposes of our analysis that the AALJ Work Analysis Study was reliable , and we considered its recommendations herein, a different outcome is not warranted . Notably, the respondent’s production numbers in FY 2012 and 2013 were significantly less than the AALJ Work Analysis Study’s “challenging goals” of 277 annual case dispositions and 23 hearings on average per month . AAL J Work Analysis Study , Executive Summary at iii-v. It is true that SSA’s data did not account for all of the variables identified by the respondent; however, the AALJ Work Analysis Study did not account for all of the variables , either. ¶9 We also have con sidered the respondent’s assertion that the cases assigned to her were not substantially the same or similar to the cases assigned to every 7 The respondent does not include a copy of the AALJ Work Analysis Study, and she does not correctly cite to the AALJ websi te. However, it appears that she is referring to a November 12, 2015 Work Analysis Study , which we have found on the www.aalj.org website . See Human Resources Research Organization (HumRRO) , Administrative Law Judge Work Analysis Study (Nov. 12, 2015), https://www.aalj.org/wp - content/uploads/2017/08/aalj_work_analysis_study_executive_summary.pdf (last visited Nov. 15, 2022). 7 other ALJ in the Chicago Hearing Office . PFR File, Tab 3 at 16 (citing Shapiro v. Social Security Administration , 800 F.3d 1332 (Fed. Cir. 2015) , for the proposition that SSA was required to show the average dispositio n rate for a particular region across the same time period ). The respondent’s reliance on Shapiro is not persuasive. Importantly, the court in Shapiro held that, “in extreme cases . . . where [the respondent’s] production is, at best, roughly a quarter of that performed by the rest o f the ALJs in his region, that [fact] standing alone is highly relevant and potentially preponderant evidence that he failed to manage his cases acceptably.” Shapiro , 800 F.3d at 1339 . Similarly, we find that the exponentially higher length of time that many of the respondent’s cases languished in ALPO status constitutes relevant evidence that she did not acceptably manage her cases. Accordingly, we affirm the ALJ’s decision in this regard . SSA did not prove the failure to follow instructions charges . ¶10 To determine whether SSA proved the failure to follow instructions charges in the suspension and removal appeals , we must first look at the directives that were issued to the respondent and her responses thereto. The May 7, 2012 directive that was at issue in the suspension appeal ordered the respondent to “take action toward issuing a decision on [20 identified cases] by the close of business on May 18, 2012.” 0008 IAF, Tab 1 at 3, Tab 171 at 261. The directive further ordered the respondent to provide a written explanation by May 18, 2012 , if she “move[d] a c ase into any status other than [ UNWR status, which means that the case is ready to be written but has not been assigned ]” or if she “fail[ed] to move one or more of these cases out of ALPO st atus.” 0008 IAF, Tab 171 at 261. The respondent submitted several timely responses to this directive. Id. at 264-68, 270 -74, 276 -78. Likewise, the January 22, 2013 directive that was at issue in the removal appeal ordered the respondent to “decide and issue decision -writing instructions on the 25 cases [identified therein] by the close of business on February 1, 2013.” 0004 IAF, Tab 1 at 17; 0008 IAF, Tab 171 8 at 336-38. The directive further advised the respondent that, if she w ere “unable to decide and issue instructions for any of these cases during this time period,” she was to provide the Hearing Office Chief ALJ with “a reason why [she was] unable to do so no later than February 1, 2013.” Id. at 336-37. The respondent submitt ed several timely responses to this directive. Id. at 342-43, 345 -52, 354-59. ¶11 The ALJ determined that the respondent’s responses satisfied her obligation under the directives; the fact that SSA did not find her responses satisfactory was a different iss ue than whether or not she followed the instructions contained therein . ID at 20-21. We agree with the ALJ that neither directive require d the respondent to submit “satisfactory” explanations; rather, she was only required to provide explanations if she were unable to move the requisite cases as directed. ID at 20-21. Her numerous responses indicate that she either moved the cases as directed or provided an explanation thereto . ¶12 We have considered SSA’s citation to Abrams v. Social Security Administrat ion, 703 F.3d 538 (Fed. Cir. 2012), to support its contention that it proved these charges. PFR File, Tab 8 at 23-26. Abrams is distinguishable from this matter, in pertinent part, because the respondent in Abrams “admitted that he had not fully complied with the directives ,” Abrams , 703 F.3d at 543, whereas the respondent here testified that her written responses comported with SSA’s directives , HT 7 at 1944 -49, 2011 -17 (testimony of the respondent) . For these reasons , we affirm the ALJ’s determination that SSA did not prove either of the failure to follow instructions charges . The respondent did not prove her claims of disab ility discrimination or harassment . ¶13 To prove disability discrimination based on a failure to accommodate, an employee must show that (1) she is an individual with a disability, as defined by 9 29 C.F.R. § 1630.2 (g); (2) she is a qualified individual with a disability as defined by 29 C.F.R. § 1630.2 (m);8 and (3) the agency failed to provide a reasonable accommodation. Miller v. Department of the Army , 121 M.S.P.R. 189, ¶ 13 (2014). The ALJ made the following findings of fact concerning the respondent’s medical conditions: (1) between December 2010 and January 2011, the respondent suffered a series of falls resulting in two concussions , and she was subsequently diagnosed with post-concussion syndrome; ( 2) she had been previously diagnosed with fibromyalgia9 and chronic fatigue syndrom e; and (3) the physical trauma resulting from her falls and long commute triggered a flare -up of her fibromyalgia symp toms. ID at 12-14. The ALJ furthe r found that the respondent was disabled based on her conditions of post -concussion syndrome, fibromyalgia, and chronic fatigue syndrome, which substantially limited her major life activities .10 ID at 12-14, 36 -37. ¶14 The ALJ concluded , however, that the respondent was not a qualified individual with a disability because she was not able to perform the esse ntial functions of her position —holding hearings and issuing timely decisions —with or without a reasonable accommodation. ID at 7, 43-45. In perti nent part, the ALJ noted that , as far back as 2011, the respondent requested a temporary cessation and/or reduction in the number of hearings that she had to hold, SSA provided her with several accommodations, including a reduced workload for an extended 8 A qualified indivi dual with a disability is an individual who has the requisite skill, experience, education and other job -related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essenti al functions of such position. 29 C.F.R. § 1630.2 (m). 9 Fibromyalgia is a disorder characterized by widespread musculoskeletal pain accompanied by fatigue, sleep, memory and mood issue s. May o Clinic, Fibromyalgia , http://www.mayoclinic.org/diseases -conditions/fibromyalgia/home/ovc -20317786 (last visited Nov. 15, 2022) . 10 The parties do not appear to challenge the ALJ’s finding on review, and we affirm it herein. 10 period of time, a “very liberal ” use of leave,11 and additional staff for assistance and support. ID at 45-48. Notwithstanding SSA’s efforts to provide the respondent with significant adjustments to her work schedule and leave flexibilities, she continued to issue relatively few dispositions and maintained a high number of cases kept in ALJ -controlled statuses for extended periods of time. ID at 47. The ALJ further found that because the respondent’s conditions were triggered by stress, and being an ALJ w as a stressful endeavor, there was no reasonable accommodation that would allow her to perform the essential functions of her position. ID at 48. ¶15 On review, the respondent contends that she was a qualified individual with a disability because she posses sed the requisite skill, experience, and education of an ALJ , and she was able to perform all of an ALJ’s functions , including holding hearings12 and writing decisions. PFR File, Tab 1 at 9-10. She further alleges that SSA’s attack on her production levels did not constitute evidence that she was unable to perform the essential functions of her position. Id. at 10. She contends that she did not request permanent relief from holding hearings or issuing decisions, but rather “sought accommodation from the obligation to hold hearings[] only during finite and specified time periods .” Id. at 10-12 (emphasis in original) . ¶16 The term “reasonable accommodation” means, in pertinent part, “[m] odifications or adjustments to the work environment, or to the mann er or 11 The ALJ noted that SSA informally allowed the respondent not to hold hearings in late August and September 2011, provided her with a drastically reduced caseload, granted her mon th-long leave requests for November 2012, December 2012 to January 2013, and May to June 2013, allowed her to work a part -time schedule with liberal use of leave from mid -March to May 1, 2013, and reduced her hearing schedule for March and April 2013. ID at 15-16. 12 The respondent conceded below that holding a hearing was an essential function of the ALJ position. 0008 IAF, Tab 160 at 18. 11 circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essen tial functions of that position” or “[m] odifications or adjustmen ts that enable a covere d entity’ s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabi lities.” 29 C.F.R. § 1630.2 (o). Thus, a reasonable accommodation may include, but is not limited to , job restructuring and part-time or modified work schedules. Id. Absent undue hardship ,13 a covered entity is required to provide a reasonable accommodation to an otherwise qualified individual who meets the definition of disability. Id. ¶17 The respondent frames her requested accommodation s as a “modified work schedule ,” PFR File, Tab 3 at 10, but she was essentially asking to be relieved of her essential functions for extend ed periods of time or, in 2013 , an unspecified period of time. See, e .g., 0008 IAF, Tab 171 at 183 (asking, in her June 2011 reasonable accommodation request, to “be excused from any new cases/hearings from at least August through September, 2011, until [ her] pending cases have been resolved,” and then a 50% reduction in the assignment of any “new cases/hearings” for the following 3 -6 months ), 332 (explaining, in her 13 The ALJ mentioned in the initial decision that a reasonable accommodation does not include an accommodation that would impose an undue hardship on the operation of the agency, noted that the respondent’s conditions were triggered by stress, and found that there was “no reasonable accommodation” that would allow her to perform the essenti al functions of the ALJ position in line with SSA’s expectations. ID at 48 (emphasis in original). On review, the respondent contends that SSA’s previous accommodations of temporary relief from her obligation to hold hearings or to issue decisions shows that her requested accommodation did not “present an actual, demonstrated undue hardship.” PFR File, Tab 3 at 13. We need not address this argument because we find that the ALJ did not make a finding of undue hardship in the initial decision . Notably , there is no discussion in the initial decision of the relevant factors described in 29 C.F.R. § 1630.2 (p) to determine whether an accommodation would impose an undue hardship, such as the nature and net cost of the accommodation, and the overall financial resources of the facilities involved and the covered entity . 12 January 2013 r easonable accommodation request, that her “condition does not allow [her] to be certain that [she] will be physically able t o hear a case on a precise date” ). We agree with the ALJ that , despite SSA’s numerous informal accommodations, the respondent continued to be unable to perform the esse ntial functions of her position and, therefore, she was not a qualified individual with a disability. ¶18 The respondent cites to Holland v. Social Security Administration , EEOC Appeal No. 01A01372 , 200 3 WL 22346114 (Oct. 2, 2003), to support her contention that an appropriate accommodation can be reducing the time that she is required to dedicate to an essential function. PFR File, Tab 3 at 10 & nn.12-13. However, the respondent misreads Holland . In that matter , the Equal Employment Opportunity Commission found that an essential function of the complainant’s Telephone Service Representative position was “handling incoming telephone calls,” but he was not required to handle a certain number of calls within a specified time or have “constant ” telephone avail ability. Holland , 2003 WL 22346114 , at *12-13. Here, in contrast , the respondent sought to have a reprieve from holding hearings , and in January 2013, requested a reprieve for an undetermined length of time, despite the fact that holding hearings was an essential function of her ALJ position. The respondent has not cited, and we are not aware of, any binding precedent that would require SSA to provide such an accommodation under these circumstances . See, e .g., Byrne v. Department of Labor , 106 M.S.P.R. 43, ¶ 7 (2007) (finding that an agency is not required to lower production or performance standards, and, upon determining that the appellant was incapable of meeting the productivity requirements of his position, the arbitrator correctly concluded that the appellant was not a qualified individual with a disability because he could not perform the essential functions of his position with or without a reasonable accommodation) . ¶19 We have considered the responde nt’s challenge to the ALJ’s finding that her condition will never go into remission , PFR File, Tab 3 at 8; ID at 42, but this 13 argument is unavailing . The ALJ stated in the initial decision that it was “reasonable” to conclude that the respondent’s fibromyalgia will never go into remission because the only way for that to happen is to eliminate str ess, and the very nature of the respondent’s job as an ALJ, coupled with her inability to manage her docket, “creates the impossibility of el iminating [her] stress.” ID at 42. Indeed, the respondent ’s treating physician, who was admitted as an expert in the field of fibromyalgia, testified that patients who suffer from fibromyalgia “get better when their stress is lowered.” HT 12 at 3358, 3412 (testimony of the treating physician) . However, the physician acknowledged that the respondent’s work was a str essor. Id. at 3348, 3403 (testimony of the treating physician) . Given the physician’s testimony, we discern no error with the ALJ’s statement in the initial decision . ¶20 In sum, the respondent has not proven that she was a qualified individual with a disability. The record reflects that in 2010, prior to her falls (which resulted in the diagnosis of post-concussion syndrome and a flare -up of her fibromyalgia), the respondent was issued a Letter of Coun seling c oncerning her failure to manage her docket in a timely and efficient manner. 00 08 IAF, Tab 171 at 125-26, 138 -41. However, after her falls, the record demonstrates fairly conclusively that the respondent was unable to perform the essential functi ons of her position with or without an accommodation. Accordingly, we agree with the ALJ that the respondent did not prove her claim of disability discrimination based on a failure to accommodate. ¶21 We also have considered the respondent’s contention that SSA treated ALJ H.C. and other ALJs differently than her. In pertinent part, she asserts on review that, in fiscal year 2012, she issued more decisions and held more hearings than ALJ H.C., but ALJ H.C. was never reprimanded, disciplined, charged with unacceptable docket management, or had her removal proposed. PFR File, Tab 3 at 15. We interpret this argument as a challenge to the ALJ’s conclusion that she did not prove her disparate treatment disability discrimination claim. ID at 49. 14 ¶22 As with a cla im of disability discrimination based on an agency’s failure to reasonably accommodate that disability , a claim based on an individual’s status as disabled require s that the individual be a qualified individual with a disability. Haas v. Department of Homeland Security , 2022 MSPB 36, ¶ 28. Further , to establish a claim of disparate treatment disability discrimination, the respondent has the burden of proving that her disability was a motivating factor in the agency’s proposed suspension and removal actions . See Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶¶ 35, 37 , 40, 42 . If the respondent meets her burden, the Board will then inquire whether the agency has shown by preponderant evidence that the action was not based on the prohibited personnel practice, i.e., that it still would have taken the contested action in the absence of the discriminatory motive. Id., ¶¶ 33-34. If the Board finds that the agency has made that showing, its prohibited personnel practice will not require reversal of the action.14 Id. ¶23 As we found above , we agree with the ALJ that the respondent was not a qualified individual with a disability . Furthermore, w e agree with the ALJ that the respondent has not identified any comparators that had such deficiencies in docket management, low production, a backlog of cases, or inability to perform the essential functions of her position. ID at 49; see Brown v. Department of the Interior , 121 M.S.P.R. 205, ¶ 27 (2014) (explaining that for employees to be similarly situated for purposes of a disparate treatment discrimination claim, all relevant aspects of the employee’s employ ment situation must be “nearly identical” to those of the comparator employees). For instance, the record reflects that ALJ H.C., a nearly 20 -year employee who was diagnosed with 14 Because we affirm the ALJ’s finding that the respondent failed to show that any prohibited consideration was a motivating fa ctor in the petitioner’s action s, we need not resolve the issue of whether the respondent proved that discrimination was a but -for cause of the petitioner’s actions . See Pridgen , 2022 MSPB 31 , ¶¶ 20 -22, 29 -33. 15 Stage 4 metastatic breast cancer, had her request to hold fewer hearings as an accommodation denied starting in 2012, she was issued a written directive to schedule more hearings in May 2013, but , in the following fiscal year, she issued more decisions and held more hearings than she had in p revious years. 0008 IAF, Tab 174 at 666-68; HT 11 at 3160 -61, 3189 -91, 3195 -96, 3199 -3201 . Therefore, we agree with the ALJ that the respondent has not proven her disparate treatment disability discrimination claim.15 SSA proved that it had good cause t o remove the respondent . ¶24 Under 5 U.S.C. § 7521 (a), “[a]n action may be taken against an [ ALJ] . . . only for good cause established and determined by the Merit Systems Protection Board on the record after an opportunity for a hearing .” Abrams , 703 F.3d at 543; Jennings v. Social Security Administration , 123 M.S.P.R. 577, ¶ 27 (2016). There is no sta tutory definition of good cause; thus, the interpretation of the term is left to the adjudicatory process and the facts of each case. Social Security Administration v. Long , 113 M.S.P.R. 190, ¶ 13 (2010) , aff’d, 635 F.3d 526 (Fed. Cir. 2011). SSA must prove good cause by preponderant evidence. Id., ¶ 12. The Board has made clear that the term “good cause” is not the equivalent of the efficiency of the service standard in cases arising in adverse action appeals pursuant to 5 U.S.C. § 7513 , but chapter 75 appeals can provide some guidance 15 The respondent reiterates her claim, made below, that SSA harassed her based on her disability and reasonable accommodation requests by, among other things, issuing many directives to her. PFR File, Tab 3 at 17-25; 0008 IAF, Tab 160 at 5-15. The ALJ did not explicitly address this claim in the initial decision , and we modify the initial decision herein to do so . The respondent identifies on review the following legal standard for such a claim: (1) a qualified individual with a disability; (2) subject to unwelcome conduct or harassment; (3) based on the individual’s d isability; (4) that unreasonably interfered with work performance or created a hostile work environment; and (5) there is a basis for im puting liability on the employer. PFR File, Tab 3 at 17-18 (citing Wagner v. Department of Transportation , EEOC Appeal No. 0120103125, 2010 WL 4972778 (Dec. 1, 2010)) . Because we have found that the respondent is not a qualified individual with a disabil ity, she also could not prevail on this claim. 16 for determining what is good cause for an action against an ALJ. Id., ¶ 13. Because we have affirmed the ALJ’s finding that SSA proved t he charges of unacceptable docket management and medical inability to perform, we find that there is good cause to discipline the respondent. ID at 21-42. ¶25 In original jurisdiction cases such as this under 5 U.S.C. § 7521 , it is the Board, rather than the employing agency, which selects the penalty. Long , 113 M.S.P.R. 190, ¶ 47. The Board does not defer to SSA’s penalty selection , but it uses the factors articulated in Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305 -06 (1981), to guide its penalty determination. Long , 113 M.S.P. R. 190, ¶ 47. In the initial decision, the ALJ discussed several of the relevant Douglas factors, and he ultimately concluded that SSA demonstrated good cause to remove the respondent. ID at 49-55. On review, the respondent contends that her medical conditions warrant mitigation. PFR File, Tab 3 at 15, 25 -26. We have considered this argument , but a different outcome is not warranted . ¶26 The respondent correctly notes that evidence that an employee’s medical condition played a part in the charged conduct is ordinarily entitled to considerable weight as a mitigating factor. PFR File, Tab 3 at 25; see Malloy v. U.S. Postal Service , 578 F.3d 1351 , 1357 (Fed. Cir. 2009); Bowman v. Small Business Administration , 122 M.S.P.R. 217, ¶ 13 (2015); Roseman v. Department of th e Treasury , 76 M.S.P.R. 334, 345 (1997). In the initial decision, the ALJ noted the respondent’s “several serious medical conditions” were mitigating factors. ID at 54-55. The ALJ found , however, that the mitigating circumstances were “lessened” because the respondent was unable to manage her case docket prior to any flare -up of her chronic conditions. Id. ¶27 We agree with the ALJ regarding the weight to be attributed to the respondent’s medical conditions . In Mingledough v. Department of Veterans Affairs , 88 M.S.P.R. 452, ¶ 12 (2001) , the Board noted that a medical condition was not a significant mitigating factor absent evidence that the impairment can be remedied or controlled, i.e., when the potential for rehabilitation was poor. We 17 agree with the ALJ that there is not a good potential for rehabilitation because the respondent has been unable to manage her docket since she began her tenure as an SSA ALJ, which is before she had her two falls, was diag nosed with post-concussion syndrome , or experienced any flare -up of her fibromyalgia symptoms , and her work as an ALJ was inherently stressful and would like ly result in additional flare -ups. ID at 53-54. Accordingly, we have considered evidence surroundin g her conditions, but we find that they do not outweigh other relevant factors , such as the nature and seriousness of the offenses . See, e .g., Long , 113 M.S.P.R. 190, ¶ 48 (explaining that the Board considers first and foremost the seriousness of the charge d conduct and its relationship to the employee’s position and duties). ¶28 For the reasons discussed herein and in the ini tial decision , we concur with the ALJ that SSA has shown good cause to remove the respondent under 5 U.S.C. § 7521 . See, e .g., Shapiro , 800 F.3d at 1340 (finding no error in the Board’s removal of the respondent based on a charge of unacceptable performance); Social Security Administration v. Mills , 73 M.S.P.R. 463, 467 -75 (1996) (finding that an ALJ’s long -term absence from duty as a result of a disability with no realistic chance of return, coupled with the agency’s demonstrated need t o fill the position, constituted good cau se for removal under 5 U.S.C. § 7521 ), aff’d, 124 F.3d 228 (Fed. Cir. 1997) (Table) . We discern no error with the ALJ’s decision to join the appeals or to issue the protective order . ¶29 We have considered the respondent’s argument that, in joining the suspension and removal appeals, the ALJ denied her the opportunity to “learn from her mistakes” and was counter to the principle of progressive discipline. PFR File, Tab 3 at 5-6. SSA , in its response, asserts that joinder is appropriate in cases involving successive disciplinary petitions, cites to 5 C.F.R. § 1201.36 , and states that the respondent does not challenge that there are common witnesses, 18 evidence, and affirmative defenses between the t wo matters. PFR File, Tab 8 at 20. ¶30 We agree with SSA and the ALJ that joinder was appropriate. The regulation at 5 C.F.R. § 1201.36 (b) states that an ALJ may join cases if doing so would expedite processing of the cases and not adversely affect the interests of the parties. The respondent has not identified how her interes ts were adversely affected when , as h ere, she was on notice of her performance deficiencies as early as December 2010. Moreover, when there is voluminous evidence and witnesses in common , we see no basis to preclude joinder in the absence of such an adverse effect. See, e .g., Abrams , 703 F.3d at 540-42 (noting that the three complaints, involving a 14 -day suspension, a 30 -day suspension, and a removal, were “combined”). ¶31 Finally, the record reflects that SSA filed a motion for a protective order to protect personal medical records of claima nts, personnel information about other employees, and its internal deliberations that would be provided to the respondent during discovery , and the ALJ granted this request over the respondent’s objection . 0008 IAF, Tabs 16, 20. The respondent asse rts on review that the protective order denied her rights as set forth in 5 C.F.R. § 1201.139 (b)(2), which states in pertinent part that, when an agency files a complaint proposing an action against an ALJ, the ALJ has a right to be represented. PFR File, Tab 3 at 6-8. In particular, the respondent asserts that her right to representation was limited because the protective order “imposed broad restrictions upon [her] ability to provide her co unsel with materials an d information.” Id. at 7. She appears to contend that she was unable to share any document that she authored or received in the course of her work as an ALJ, including to supervisors or doctors , nor could she share with her attorney any email s that she may have sent to her supervisor that contained protected whistleblowing or other disclosures. Id. ¶32 The Board will not reverse an administrative judge’s rulings on discovery matters absent an abuse of discretion . Wagner v. Environmental Protection 19 Agency , 54 M.S.P.R. 447, 452 (1992), aff’d , 996 F.2d 1236 (Fed. Cir. 1993) (Table). The abuse -of-discretion st andard i s a very high standard and allows for great deference. Pecard v. Department of Agriculture , 115 M.S.P.R. 31, ¶ 15 (2010) . We have reviewed the protective order . However, we are not persuaded that the ALJ’s decision to grant SSA’s request for a protective order constituted an abuse of discretion because it does not appear to prohibit the respondent from sharing with her attorney any documentation that she deemed essential to her defense in these matters. ¶33 Accordingly, the initial decision is affirmed, except as modified herein . ORDER ¶34 The Board authorizes SSA to remove the respondent from her ALJ position for good cause shown, pursuant to 5 U.S.C. § 7521 . NOTICE OF APPEAL RIG HTS16 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matt er. 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, th e Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file 16 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which opt ion is most appropriate in any matter . 20 within the applicable time limit may result in the dismissal of your case by your chosen forum . Please read 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. 21 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decis ion—including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 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 security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.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: 22 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial revi ew pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8 ) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Fe deral Circuit or any court of appeals of competent jurisdiction.17 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B) . 17 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of ap peals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 23 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D .C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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	ABRAMS_MARLENE_R_CB_7521_13_0008_T_1_FINAL_ORDER_1978984.pdf	2022-11-17	null	S	NP
3,917	https://www.mspb.gov/decisions/nonprecedential/PEREZ_MIGUEL_NY_0752_15_0183_X_1_FINAL_ORDER_1979001.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MIGUEL PEREZ, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER NY-0752 -15-0183 -X-1 DATE: November 17, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Alan E. Wolin , Jericho, New York, for the appellant. Michael J. Berger , Esquire, Brooklyn, New York, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 This case was referred to the Board after the administrative judge issued an April 4, 2017 compliance initial decision grant ing the appellant’s petition for enforcement of an October 19, 2016 settlement agreement , which resolved 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 ord ers, 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 Boa rd as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 underlying appeal and was entered into the record for enforcement by the Board. Perez v. Department of Veterans Affairs , MSPB Docket No. NY -0752 -15-0183 - X-1, Compliance Referral File (CRF), Tab 1; Perez v. Department of Veterans Affairs , MSPB Docket No. NY -0752 -15-0183 -C-1, Compliance File (C -1 CF), Tab 12, C ompliance Initial Decision ( C-1 CID). As discussed below, while the case was pending , the appellant obtained a resolution of his claims in another proceeding , and we therefore DISMISS this petition for enforcement as superseded and constructively withdrawn. DISCUSSION ¶2 After the appella nt filed an appeal of his removal by the agency, the parties entered into a written settlement agreement on October 19, 2016, that resolved the issues in the appeal, and the agreement was entered into the record for enforcement. C -1 CID at 2. On February 2, 2017, the appellant filed a petition for enforcement alleging that the agency failed to show that it had complied with certain terms of the agreement. C -1 CF, Tab 1. In the April 4, 2017 compliance initial decision, the administrative judge found tha t the agency had not taken all the actions required to be in full compliance and ordered the agency to take specific actions. C -1 CID at 4-5. The case was transferred to the Board for enforcement of the administrative judge’s order. CRF, Tab 1. ¶3 Subseque ntly, on October 4, 2017, while the case was pending at the Board and after the agency had taken most of the actions required, the appellant filed a “renewed” petition for enforcement, by which he sought to “renew his original petition for enforcement” wit h the administrative judge, rather than waiting for a decision from the Board. Perez v. Department of Veterans Affairs , MSPB Docket No. NY -0752 -15-0183 -C-2, Compliance File (C -2 CF), Tab 1. While this second petition for enforcement was pending, the part ies resolved all but one outstanding issue concerning the agency’s compliance with the October 19, 2016 settlement agreement —namely, the appellant’s salary upon restoration. C -2 CF, Tabs 9 -10, 3 Tab 13 at 6. On March 12, 2018, the administrative judge issu ed a second compliance initial decision finding the agency in compliance with the settlement agreement. C-2 CF, Tab 16, Compliance Initial Decision (C -2 CID) at 3 -6.2 On April 16, 2018, the administrative judge’s decision became the final decision of the Board on the appellant’s second petition for enforcement. Id. at 6. ¶4 In view of this resolution, we find that the appellant has waived further continuance of this proceeding, and we therefore dismiss his first petition for enforcement as superseded and constructively withdrawn. This is the final decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)). NOTICE OF APPEAL RIG 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 ava ilable appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall wit hin their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 2 On the single outstanding compliance issue, the administrative judge found that the agency proper ly paid the appellant the salary of the GS -6, Step 10 position he was placed in prospectively under the settlement agreement and that nothing in the agreement supported his entitlement going forward to saved pay at the higher salary of his former Police Of ficer position. C -2 CID at 5 -6. 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 appr opriate 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 a ppropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for rev iew to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, an d Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals 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. 5 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action in volves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other secur ity. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request f or review to the EEOC by regular U.S. mail, the address of the EEOC is: 6 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice describ ed in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of compete nt jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 If you submit a petition f or judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional inf ormation about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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	PEREZ_MIGUEL_NY_0752_15_0183_X_1_FINAL_ORDER_1979001.pdf	2022-11-17	null	NY-0752	NP
3,918	https://www.mspb.gov/decisions/nonprecedential/ANDERSEN_MARTIN_DC_1221_19_0058_W_1_FINAL_ORDER_1979032.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MARTIN ANDERSEN, Appellant, v. DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER DC-1221 -19-0058 -W-1 DATE: November 17, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Martin Andersen , Churchton, Maryland, pro se. Kara Greenberg and Robert Andrew Schafer , Arlington, Virginia , for the agency. Mollie A. Murphy , Washington, D.C., for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member Member Leavitt recused himself and did not participate in the adjudication of this appeal. FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed this individual right of action (IRA) appeal for lack of jurisdiction . 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 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. Except as expressly MODIFIED to explain why we may rely on the parties’ non-Board settlement agreement in our jurisdictional determination, discuss the appellant’s contention that the agency breached the agreement , address wh ether the agreement included terms that were against public policy , and find that the agreement’s waiver provision covers an alleged personnel action that occurred after the date of the agreement but before the appellant’s separation and that t he appellant failed to establish jurisdiction over alleged personnel actions occurring after his employment, we AFFIRM the initial decision. BACKGROUND ¶2 The agency appointed the appellant in December 2005 to a 3 -year term as a civilian faculty member an d Publication and Communication Specialist with its Center for Hemispheric Defense Studies (CHDS), National Defense University (NDU) , located at Fort Lesley J. McNair, in Washington, D.C. Initial Appeal File (IAF), Tab 1 at 5, Tab 61 at 47 -48, 52, Tab 99 at 4, 65. The appointment was made pursuant to 10 U.S.C. § 1595 , which permits the Secretary of Defense to 3 employ civilian faculty members at certain Department of Defense (DOD) schools. IAF, Tab 1 at 14, Tab 57 at 5, Tab 70 at 16, Tab 99 at 4 . The agency extended the appointment in September 2008 for a 2 -year period ending in December 2010, and further exten ded it in October 2010 for an additional 1 -year period ending in late December 2011. IAF, Tab 99 at 4. ¶3 In May 2011, the appellant copied several high -level agency officials, as well as other individuals outside the agency, on an email he sent to his super visor addressing a recent dispute with the supervisor and alleg ing wrongdoing at the CHDS . Id. at 19-22. The agency thereafter placed him on administrative leave and restricted his access to his work building and the NDU computer system. Id. at 14 -27. This restriction coincided with a period in which the appellant was scheduled for major surgery. Id. at 14, 16, 19, 22. After his surgery, the appellant unexpectedly visited the CHDS on June 16, 2011, and , according to the agency, “transmitted what were interpreted as verbal threats of an ambiguous nature,” which caused an employee to feel frightened and concerned for her safety. Id. at 63, 65. This resulted in the agency denying the appellant access to CHDS facilities and banning him from access to NDU buildings and assets . Id. at 65, 67. Also during June and July 2011 , the appellant sent emails critical of CHDS from his personal email accounts to individuals inside and outside of the organization. E.g., IAF, Tab 23 at 6 -7, Tab 25 at 6, Tab 26 at 6 -8, Tab 32 at 38-39. The appellant’s supervisor issued him instructions to “cease and desist” from “send[ing] emails related to CHDS business from [his] personal computer to addressees outside of CHDS.” IAF, Tab 3 at 13, Tab 34 at 43, Tab 61 at 52. ¶4 On Augu st 22, 2011, the agency notified the appellant that his appointment, which was due to expire on December 24, 2011, would not be renewed. IAF, Tab 1 at 14. On September 13, 2011, the agency proposed his suspension for 4 calendar days based on a charge of failure to follow guidance and instructions. IAF, Tab 61 at 52 -53. The agency alleged that the appellant had failed to cease and desist from sending communications alleg ing improper actions 4 by CHDS personnel to persons outside of CHDS and official invest igative channels. Id. at 52. On September 30, 2011, the agency f ound that the reasons for the proposal were sustained and a 3 -day suspension was warranted, but h eld the suspension in abeyance pending the appellant’s separation upon expiration of his appointment. IAF, Tab 99 at 71 -72. The decision notice provided that, if no further incidents occurred, the suspension would not be imposed and would not become a part of his official employment record. Id. at 71. ¶5 On or about Decemb er 21, 2011, the parties entered into a settlement agreement under which the agency agreed to extend the appellant’s employment until March 31, 2012, amend his last performance evaluation, sign a letter of recommendation in support of his future employment opportunities, and remove any derogatory information from his personnel file. Id. at 74 -75, 79. In exchange , the appellant agreed not to institute a lawsuit under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 196 7, the Rehabilitation Act of 1974, and the Whistleblower Protection Act. Id. at 74. He also agreed to “cease and desist any and all negative public discussion ” of agency personnel, issue a public apology, and not file any new complaints, claims, grievanc es, proceedings, appeals, or lawsuits against the agency in any judicial or administrative forum, including the Board, the Inspector General, and the Office of Special Counsel (OSC) , “arising out of his employment with the Agency, and all related matters.” Id. at 75. ¶6 The settlement agreement provided that “no future claims or complaints of any kind arising out of [the appellant’s] past employment with the Agency will be pursued . . . except for the purposes of enforcing this agreement.” Id. It also provided that if a court of competent jurisdiction determined that the settlement agreement included an illegal provision, that portion of the agreement would be disregarded, while the balance of the agreement would be enforced as if the illegal portion had n ot been a part of the agreement. Id. at 76. The parties further agreed that if the appellant believed that the agency had failed to comply with the 5 terms of the agreement, the procedu res set forth at 29 C.F.R. § 1614.504 would govern, under which the appellant “ shall” notify the agency’s equal employment opportunity (EEO) director of any breach and could appeal any adverse agency decision on compliance to the Equal Employment Opportunity Commission (EEOC) . Id. at 77 -78. The agreement was signed by the appellant, his attorney representative , and the CHDS director. Id. at 79. The appellant acknowledged that he had carefully read the agreement, fully understood its provisions, and voluntarily entered into the agreement. Id. at 77. The appellant ’s employment with the agency ended when his extended term appointment was not renewed in March 2012. IAF, Tab 1 at 3, 5, Tab 57 at 6. ¶7 Over 6 years later, on May 2, 2018, the appellant filed a complaint with OSC asserting that, in reprisal for disclosures he made to the DOD Office of Inspector General (OIG) and others, including Members of Congress, the agency renewed his 3 -year appointment2 for only 2 years and 1 year, respectively, th en failed to renew his appointment , downgraded his annual performance evaluation, and prevented him from accessing the facilities at the NDU. IAF, Tab 1 at 15, 20-36. OSC terminated its investigation and informed the appellant of his right to file an IRA appeal with the Board. Id. at 4, 94. The appellant timely filed this appeal alleging that the agency took personnel actions against him based on whistleblowing disclosures. Id. at 1, 5. Among other things, he alleged that the agency improperly pressur ed him into signing the settlement agreement, did not renew his appointment in 2011, and rendered him virtually unemployable in his field. Id. at 5 -6. The appellant also claimed that the settlement agreement violat ed current and future laws and “sought t o prevent [him] from reporting to an 2 The appellant describes his term appointments as employment “contracts.” E.g., IAF, Tab 1 at 6, 20 -21, Tab 2 at 4. The record reflects that the appellant was actually employed under a series of term appointments, IAF, Tab 1 at 14, Tab 61 at 19, 26, 48; see 10 U.S.C. § 1595 , and not as a contractor. 6 OIG, Members of Congress, or the OSC prior violations of rule, regulation and law.” Id. at 5. The appellant requested a hearing. Id. at 2. ¶8 The administrative judge ordered the appellant to identify his disclosures, protected activities, personnel actions , and how the disclosures and protected activities were contributing factor s in those personnel actions, as well as how those allegations were brought to the attention of OSC. IAF, Tab 5 at 7 -9. After the appellant filed his responses to the order, IAF, Tabs 11 -15, 17 -35, the agency moved to dismiss the appeal for lack of jurisdiction. IAF, Tab 57 at 4 -15. As relevant here, the agency argued that the appeal was barred by the settlement agreement under which he agreed not to file a Board appeal arising out of his employment with the agency. Id. at 10-14. ¶9 The administrative judge ordered the appellant to file evidence and argument showing by preponderant evidence that the settlement agreement or the waiver of Board appeal rights set forth therein was invalid. IAF, Tab 79 at 4. In this regard, the administrative judge informed the appellant that a party may challenge the validity of a settlement agreement, regardless of whether it has been entered into the record for enforcement, if the agreement is unlawful, involuntary, or the result of fraud or mutual mistake. Id. at 2. She noted t hat the appellant may challenge the enforceability of a waiver of Board appeal rights by showing that it resulted from a gency duress or bad faith. Id. The administrative judge also informed the appellant that he would be entitled to a jurisdictional hearing if he made a nonfrivolous allegation meeting the above criteria . Id. ¶10 After the parties filed their responses, and based on the written record, the administrative judge dismissed the appeal for lack of jurisdiction. IAF, Tab 110, Initial Decision (ID) at 1, 11. She found that the appellant did not make a nonfrivolous allegation that the settlement agreement or the w aiver of Board appeal rights set forth therein was unlawful, involuntary, or otherwise the result of bad faith or duress. ID at 6 -8. 7 ¶11 The administrative judge further found that the appellant did not make a nonfrivolous allegation of Board jurisdiction w ith respect to an agency investigation into his allegations of wrongdoing that occurred between the December 2011 execution of the settlement agreement and his March 2012 separation. ID at 10. Similarly, the administrative judge determined that the appel lant did not make a nonfrivolous allegation of Board jurisdiction with respect to alleged reprisal that occurred after his separation from the agency. ID at 10 -11. Accordingly, she dismissed the appeal for lack of jurisdiction. ¶12 The appellant has filed a timely petition for review of the initial decision . Petition for Review (PFR) File, Tab 2. The agency has not filed a response to the petition for review. After the close of the record on review, the appellant filed numerous motions for leave to file ad ditional pleadings.3 PFR File , Tabs 6, 8, 10, 3 We deny the appellant’s motions for leave to file additional pleadings. The appellant asserts, among other things, that he has evidence from a former colleague that another complaint had been filed against the individual the appellant assert s retaliated against him for his whistleblowing, as well as evidence that the DOD OIG is “looking into” disclosures made about this individual. PFR File, Tab 6 at 4 -5. He also requests to file correspondence he received from the Acting Secretary of the N avy, testimony and information provided to Congress, as well as other materials, regarding the DOD IG and the Defense Intelligence Agency (DIA), articles from newspapers, foreign policy and academic journals, correspondence he sent to the International Cri minal Court, “journalism sources” about neo -Nazi sympathizers at the NDU, the arrest of officials formerly associated with the CHDS NDU, documentation connecting a winner of an NDU award to drug cartels and death squads, contemporaneous information regardi ng extremist and undercover groups within the U.S. military, and current employment information regarding a retired U.S. Navy Vice Admiral who served as President of the NDU. E.g., PFR File, Tab 8 at 4 -5, Tab 10 at 3, Tab 13 at 3, Tab 15 at 3, Tab 18 at 3 , Tab 20 at 3, Tab 22 at 3, Tab 25 at 3, Tab 27 at 3, Tab 30 at 4 -6, Tab 32 at 4 -6, Tab 34 at 4-6, Tab 37 at 4 -7, Tab 58 at 5 -8, Tab 63 at 4 -7, Tab 68. He also seeks to file testimony and recollections from a dozen Federal officials from various agencies regarding extremism at the NDU, unspecified national security evidence he submitted to the Naval Criminal Investigative Service, documentation regarding the current use of the Racketeer Influenced and Corrupt Organizations Act, a book written by Washington Post reporters regarding extremists in the U.S military, a disclosure he will be making to the International Criminal Court regarding Jewish Councils during World War II, his application for an agency award in 2001, information regarding physical violence against those who speak truth to power, police records accompanying certain disclosures, documents such as an interview and case decisions reflecting that an 8 13, 15, 18, 20, 22, 25, 27 , 30, 32, 34 , 37, 40, 43, 45, 51, 53, 55 , 58, 60, 63 , 67-68, 70, 73, 75 , 77. ANALYSIS The Board will consider the parties’ settlement agreement in determining whether the appellant has made a nonfrivolous allegation of jurisdiction. ¶13 After the initial decision was issued in this case, the U.S. Court of Appeals for the Federal Circuit issued its decision in Hessami v. Merit Systems Protection administrative judge at the Board once defended the Department of Homeland Security in litigation against an allegation of whistleblower reprisal, an article from a Mexican newspaper regarding the killing of members of the Mexican military in the fight against drug trafficking and illegal firearms, news articles , legal briefs , and other documents rega rding killings, drug trafficking, and other wrongdoing by the Chilean, Colombian, Honduran, and Uruguayan militaries and other South American dictatorships, messages of support from colleagues, an article from an Argentinian newspaper regarding child adopt ions in Chile, articles regarding a Nazi salute by a university professor and the recruitment of U.S. state and local police by foreign intelligence agencies, “public and private” materials including news articles and an academic “report” showing that individuals in the U.S. military and the NDU promoted and assisted “secret wars” and coups in Latin America and Africa by individuals associated with drug trafficking or other wrongdoing, another whistleblower’s disclosures regarding drug use by U.S. pilots, and notification from an international journal that it will be publishing an article based on his legal case. PFR File , Tabs 40, 43, 45, 51, 53, 55 , 58, 60, 63, 67, 70 , 77. The appellant further seeks to “add record information” and submit documentation regarding the alleged involvement of DIA officials in, and their reactions to, the COVID -19 pandemic and a possible “coup against the sitting [P]resident of the United States.” PFR File, Tab 63 at 5 -6, 8. In addition, the appellant seeks to introduce evid ence relating to an award received by an NDU colleague who had praised the appellant, as well as a book on the psychological impact of whistleblower reprisal. PFR File, Tabs 73, 75. When, as here, the record has closed on review, the Board will not accept any additional evidence or argument unless the party seeking to submit the new evidence or argument shows it is new and material. Stoglin v. Department of the Air Force , 123 M.S.P.R. 163, ¶ 5 n.3 (2015), aff’d per curiam , 640 F. App’x 864 (Fed. Cir. 2016); 5 C.F.R. § 1201.114 (k). To be material, the appellant’s submissions must be of sufficient weight to warrant a different outcome. Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980). The appellan t has not shown that some of the documents he seeks to submit, such as his correspondence with a U.S. Senator, are new. See, e.g. , IAF, Tab 22 at 3. He also has not shown that the remaining documents would address the jurisdictional issues in this case. Therefore, he has not shown that the documents are material to our determination, and we deny his motions. 9 Board , 979 F.3d 1362 (Fed. Cir. 2020) .4 In that case, the court held that , when evaluating the Board’s jurisdiction in an IRA appeal, “the question of whether the appellant has non -frivolously alleged protected disclosures that contributed to a personnel action must be determined based on whether the employee alleged sufficient factual matter, a ccepted as true, to state a claim that is plausible on its face. ” Id. at 1369 . The court explained that “[t]he Board may not deny jurisdiction by crediting the agency’s interpretation of the evidence as to whether the alleged disclosures fell within the protected categories or whether the disclosures were a contributing factor to an adverse personnel action. ” Id. Nevertheless, the court noted that “the Board may also consider sources such as ‘matters incorporated by reference or integral to the claim, i tems subject to judicial notice, [and] matters of public record. ’” Id. (quoting A & D Auto Sales, Inc. v. United States , 748 F.3d 1142 , 1147 (F ed. Cir. 2014) ( quoting 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 13 57 (3d ed. 2004)) ). Similarly, we may also consider “exhibits attached to the complaint whose authenticity is unquestioned. ” Wright & Miller, supra , § 1357; von Kaenel v. Armstrong Teasdale , LLP, 943 F.3d 1139 , 1143 (8th Cir. 2019 ). ¶14 The appellant attached a copy of the settlement agreement to h is appeal. IAF, Tab 1 at 8-13. He relied on it to support his claim that the agreement violated “current and future law,” and he does not dispute the authenticity of the agreement . Id. at 5-6. The appellant also asserted that the agency breached the agreement when it did not remove derogatory information from his personnel file 4 The administrative judge did not have t he benefit of the Hessami decision, and therefore did not address how that decision might impact the jurisdictional analysis here. While the Board has historically been bound by the precedent of the U.S. Court of Appeals for the Federal Circuit on these t ypes of whistleblower issues, pursuant to the All Circuit Review Act, Pub. L. No. 115 -195, 132 Stat. 1510 , appellants may file petitions for judicial review of Board decisions in whistleblower reprisal cases with the Federal Circuit or any circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703 (b)(1)(B). For purposes of this appeal, we have addressed the impact of Hessami and cited to other Federal Circuit precedent in support of o ur determination in this case. 10 and “blacklist[ed]” him for several positions to which he applied . IAF, Tab 64 at 6-11, Tab 75 at 6, Tab 83 at 29 -30, Tab 96 at 11-12. Thus, w e find that the settlement agreement is a matter incorporated by reference or integral to the appellant’s claim , and that its authenticity is unquestioned . ¶15 Moreover, Federal Rule of Civil Procedure 10(c) provides that a “written instrument” attached to a pleading be come s “a part of that pleading for all purposes. ”5 Under this reasoning, when an appellant attaches a written instrument to his appeal, and rel ies on it to assert his claims , its contents are part of the appeal that the Board may consider in determining its sufficiency . See Williams on v. Curran , 714 F.3d 432, 435 -36 (7th Cir. 2013 ) (explaining that “when a plaintiff attaches to the complaint a document that qualifies as a written instrument, and her complaint references and relies upon that document in asserting her claim, the contents of that document become part of the complaint and may be considered as such when the court decides a motion att acking the sufficiency of the complaint ”). “[A] n instrument is a document that defines a party’s rights, obligations, entitlements, or liabilities, ” such as a contract. Id. (citation omitted). A settlement agreement is a contract. Jackson v. Depart ment of the Army , 123 M.S.P.R. 178 , ¶ 6 (2016). Thus , under the guidance provided by Federal Rule of Civil Procedure 10(c) and case law interpreting that rule , we find that the settlement agreement became a part of the appeal and may be considered in determining whether the Board has jurisdiction . The appellant has not shown that the settlement agreement was fraudulent as a result of coercion or duress . ¶16 The appellant asserts on review that , before he signed the settlement agreement, the agency did not support him as a whistleblower and was “out to 5 Although the Board is not bound by the Federal Rules of Civil Procedure, it may look to them for guidance. McCarthy v. International Boundary & Water Commission , 116 M.S.P.R. 594 , ¶ 21 (2011), aff’d , 497 F. App’x 4 (Fed. Cir. 2012). We find that the aforementioned Federal rule is instructive guidance for our disposition of this appeal. 11 get” him, he had Outstanding performance evaluations before he made his disclosures and received an award for whistleblowing, and other employees feared making disclosures due to the agency’s propensity to retaliate. PFR File, Tab 2 at 3 -4, 13, 21. He al so claims that the agreement was a “Contract of Adhesion” that he was required to sign because the agency had greater bargaining power , and that he signed the agreement when he was “[u]p against the wall and facing continued character assassination.” Id. at 11, 19, 21-22. ¶17 The Board will consider the settlement agreement, even though it was reached outside of a Board proceeding, to determine its effect on the Board appeal and any waiver of Board appeal rights . Lee v. U.S. Postal Service , 111 M.S.P.R. 551 , ¶ 4 (2009), aff’d per curiam , 367 F. App’x 137 (Fed. Cir. 2010) . The appellant may challenge the validity of the settlement agreement if he believes that the agreement was unlawful, involuntary, or resulted from fraud or mutual mistake . Id. ¶18 To establish that a settlement agreement was fraudulent as a result of coercion or duress, a party must prove that he involuntarily accepted the other party’s terms, that circumstances permitted no alternative, and that such circumstances were the result of the other party’s coercive acts. Hinton v. Department of Veterans Affairs , 119 M.S.P.R. 129, ¶ 4 (2013 ). The test as to whether the agreement resulted from coercion is objective, i.e., whether a reasonable per son in the appellant’s position would have felt coerced . See Middleton v. Department of Defense , 185 F.3d 1374 , 1377 -83 (Fed. Cir. 1999 ) (concl uding that a former Federal employee made nonfrivolous allegations that he signed the settlement agreement , pursuant to which he retired, as a result of agency misinformation and coercion ). The party challenging the validity of the settlement agreement be ars a heavy burden. Hinton , 119 M.S.P.R. 129, ¶ 4. An appellant’s mere post -settlement remorse or change of heart cannot serve as a basis for setting aside a valid settlement agreement , id., and the fact that an 12 appellant f aced unpleasant alternatives does not render an agreement involuntary , Bahrke v. U.S. Postal Service , 98 M.S.P.R. 513, ¶ 12 (2005 ). ¶19 The appellant has not made a nonfrivolous allegation that the agency’s representative engaged in coercive acts or that the circumstances were such that he had no alternative to accepting the agreement. To the extent that he is alleg ing that the agency’s actions before entering into the settlement agreement caused him duress , and thereby led to his involuntary acceptance of the agreement, the Board will consider wh ether the appellant was represented below, whether he has demonstrated that he was mentally impaired at the time, and whether he has otherwise shown that he was unable to understand fully the nature of the action in question or to assist his representative in the appeal. Sullivan v. Department of Veterans Affairs , 79 M.S.P.R. 81, 85 (1998) . The administrative judge found the appellant failed to nonfrivolously allege the agreement was the result of duress. ID at 6. She observed that the appellant was represented by counsel , who engaged in substanti ve negotiations for more than 1 month prior to signing the agreement along with the appellant ; the appellant did not allege he was mentally impaired; and he acknowledged in the agreement that he understood its provisions and entered into it voluntarily . ID at 6-8. We agree. ¶20 The appellant was re presented by an attorney during the negotiat ion and signing of the settlement agreement. IAF, Tab 2 at 29, Tab 9 at 18 -24, Tab 83 at 29, Tab 88 at 4, Tab 99 at 79. The appellant indicated that his attorney spent “much time negotiating on [his] behalf ,” IAF, Tab 28 at 7 -8, and negotiated changes to the agreement for the appellant, IAF, Tab 92 at 6 -8. The appellant has not alleged that he was unable to fully understand the nature of the settlement agreement or to assist his counsel. In fact, the agreemen t specifically provides that the appellant “attests that by entering into this agreement, he has carefully read and fully understands all of its provisions, and that his signature is voluntary.” IAF, Tab 99 at 77. It also provides that the parties unders tand the terms of the agreement, freely accept them, and enter into the agreement 13 voluntarily. Id. Given the opportunity the appellant and his attorney had to discuss the negotiations and the settlement agreement, these statements of understanding set fo rth in the agreement must be taken at face value. See Gutierrez v. Department of Defense , 66 M.S.P.R. 403 , 409 (1995). Accordingly, the appellant has not made a nonfrivolous allegation that he entered into the agreement involuntar ily. Cf. Short v. U.S. Postal Service , 66 M.S.P.R. 214, 219-20 (1995) (finding that an employee who submitted an affidavit from a licensed social work er stating that he was incapable of making a rational decision when he signed the settlement agreement , and his own affidavit reflecting that he signed the agreement under time pressure , made a nonfrivolous allegation that the agreement was invalid ). ¶21 The appellant further asserts that he did not receive valuable consideration in the settlement agree ment for the following reasons: (1) his employment extension was only for 3 months out of a “12 -month minimum extension [he] was entitled to”; (2) the agency did not remove all derogatory information from his personnel file; and (3) the letter of recommendation the agency wrote for him was a “bad faith fraud” because the agency did not believe in the contents of the letter. PFR File, Tab 2 at 28 -29. W e disagree. ¶22 Under the law of contracts, an enforceable contract does not exist unless it is based on a bargained -for exchange , known as “consider ation.” Pappas v. Office of Personnel Management , 76 M.S.P.R. 152, 158 (1997), aff’d per curiam , 155 F.3 d 565 (Fed. Cir. 1998) (T able). A very small consideration (the proverbial “peppercorn”) can support an enforceable contract ; convenience, avoidance of troublesome details and effort s, and forbearance to institute proceedings against the other party, for example, can be proper el ements of consideration. Id. As found by the administrative judge, the appellant received valuable consideration in the form of promises by the agency to extend his employment by 3 months even though his appointment was expir ing in December 2011 , positively amend his employment evaluation records, provide a 14 letter of recommendation, and remove derogatory information from his personnel file.6 ID at 6. The appellant’s assertion of noncompliance by the agency regarding derogatory information in hi s personnel file after the parties entered into the settlement agreement does not demonstrate a lack of consideration sufficient to invalidate the agreement . See Zemco Manufacturing, Inc. v. Navistar International Transportation Corp. , 270 F.3d 1117 , 1121 n.3 (7th Cir. 2001) (explaining the difference between a lack of consideration in the formation of a contract and a breach of a contract) . Moreover, regard less of the letter of recommendation writer’s beliefs , the letter still represent ed a thing of value to the appellant in exchange for other consideration received by the agency. The appellant has not shown a basis to invalidate the settlemen t agreement based upon an alleged breach of the agreement by the agency . ¶23 The appellant asserts that the agency did not remove derogatory information from his personnel file as required under the settlement agreement . PFR File, Tab 2 at 11-12, 28; see IAF, Tab 64 at 6 -8, Tab 75 at 6, Tab 96 at 18 -19, Tab 99 at 75 . He also claimed below that the agency contributed to ongoing “blacklisting” that deprived him of several position s for which he had applied , IAF, Tab 83 at 30, Tab 96 at 12, 19 , shared the apology he wrote as part of the agreement with recipients of his emails , IAF, Tab 94 at 15 , and informed an online publication with wh om he was seeking employment that his criticisms of the CHDS were inaccurate , IAF, Tab 96 at 18. He appears to assert that these actions violated the agreement’s provision s that “[b]oth parties agree n ot to disparage the other party, ” and that the settlement agreement’s terms would be kept confidential with certain enumerated exceptions. Id.; see IAF, Tab 99 at 76. ¶24 The administrative judge did not address the appellant’s arguments regarding breach. ID at 11 n.2. We find we must do so here. An appellant may 6 To th e extent that the appellant is arguing that the 3 -month extension of his appointment was unlawful, we have separately explained below why we need not address the legality of any provision of the settlement agreement. 15 show that a waiver of appeal rights in a settlement agreement is unenforceable by showing that he complied with t he agreement, but the agency breached it . Ringo v. Department of Defense , 122 M.S.P.R. 91 , ¶ 8 (2015 ); Siman v. Department of the Air Force , 80 M.S.P.R. 306 , ¶ 10 (1998) . Under the terms described below , however, we do not reach the issue of br each . ¶25 The agreement provided that , “in the event that the Employee believes that the agency has failed to comply with the terms of this agreement, the procedures set forth at 29 C.F.R. Section 1614.504 shall govern.” IAF, Tab 99 at 77. In this regard, t he agreement also provided that the appellant “shall notify the agency’s EEO Director, in writin g, of the alleged noncompliance. ” Id. at 77 -78. If the appellant was not satisfied with the agency’s attempt to resolve the matter or the agency ha d not responded to the appellant’s request, he was entitled to appeal to the EEOC “for a determination as to whether the agency has complied with the terms of the settlement agreement or final deci sion.” Id. at 78. The agreement did not provide for a remedy before the Board in the event of a breach. ¶26 The language of 29 C.F.R. § 1614.504 essentially mirror s this provision . The B oard has dismissed a petition to enforce a settlement agreement when it identifie d 29 C.F.R. § 1614.504 as the exclusive process for seek ing enforcement or review from an alleg ed breach of an agreement . See Fuentes v. Department of Health & Human Services , 111 M.S.P.R. 246, ¶ ¶ 3-4 (2009) (dismissing a petition to enforce a settlement agreement that included a provision that any enforcement action be resolved under the procedures at 29 C.F.R. § 1614.504 ); Grubb v. Department of the Interior , 76 M. S.P.R. 639, 642-43 (1997) (concluding that the parties did not intend to have the Board enforce a settlement agreement when the agreement provided that the appellant’s remedy for any agency noncompliance was pursuant to the procedures at 29 C.F.R. § 1614.504 ). When reviewing a contract dispute, the Board must ensur e that the parties receive that for which they bargained. See Walker -King v. Department of Veterans Affairs , 119 M.S.P.R. 414, ¶ 10 (2013). B ecause the agreement shows that the parties did 16 not intend to have the B oard determine whether the agency breached the agreement , we will not make a determination on that issue . There is no basis to invalidate the settlement agreement based upon a finding that some of its provisions are unlawful. ¶27 The settlement agreement provi des, in relevant part, that the appellant agree s to cease and desist any and all negative public discussion of CHDS and past and current CHDS personnel. IAF, Tab 99 at 75. The appellant asserts that this provision improp erly prohibit s him from making dis closures to OSC, the Board, OIG , and Congress , and violate s the Lloyd -LaFollette Act of 1912, ch. 389, § 6, 37 Stat. 539, 555 , which specifie d that the right of civil servants to furnish information to Congress “shall not be denied or interfered with ,” PFR File, Tab 2 at 23 ; see 5 U.S.C. § 7211 (containing the same prohibition) ; Bush v. Lucas , 462 U.S. 367, 382-83 (1983 ) (discussing the language and purpose of this provision of the Lloyd -LaFollette Act of 1912 ). ¶28 The administrative judge did not specifically address this argument, although the appellant raised it below. IAF, Tab 34 at 14 -15. However, she consider ed a similar argument by the appellant, that the agreement violated the Whistleblower Protection Enhancement Act of 2012 (WPEA) , Pub. L. No. 112-199, § 104(a) -(b), 126 Stat. 1465 , 1467 -68 (codified in relevant part at 5 U.S.C. § 2302 (a)(2)(A)(xi), (b)(13) & note), which added “enforcement of a nondisclosure . . . agreement” to the list of personnel actions and prohibited personnel practices . ID at 8 -9. She held that, even if the appellant correctly asserted that this provision was unlawful because it prohibited him from continuing to make whistleblower disclosures, the appellant’s waiver of Board appeal rights remained valid because the agreement also provided th at the remainder of the agreement would be enforced as if any illegal portion had not been a part thereof.7 ID at 8 -9. We agree. 7 The appellant has not re -raised thi s argument regarding enforcement of a nondisclosure agreement on review. Further, he has not alleged that the agency sought 17 ¶29 The Board generally will consider the alleged unlawfulness of a settlement agreement entered into in another forum to the ext ent it renders an appellant’s waiver of appeal rights unenforceable before the Board . See Lee, 111 M.S.P.R. 551, ¶ 4 & n.2 (acknowledging that the Board has no authority to invalidate a settlement agreement entered into in another forum, but that it may consider the agreement to determine its effect on the Board appeal and any waiver of appeal rights) . However, here w e need not decide whether this or any other provision in the agreement is unlawful under the circumstances of this appeal. The settlement agreement provides that, “if determined by a court of competent jurisdiction, this agreement contains an illegal provisi on, then the illegal portion of the agreement will be disregarded, and the balance of the agreement enforced as if the illegal portion had not been part of the agreement.”8 IAF, Tab 99 at 76. ¶30 We consider “the language ” of a settlement agreement and “the intent of the parties in determining whether the [agreement ] is divisible. ” See American Savings Bank, F.A. v. United States , 519 F.3d 1316 , 1325 (Fed. Cir. 2008); see also 15 Williston on Contracts § 45:6 (4 th ed. May 2021) (“[t]he parties’ intent to enter into a divisible contract may be expressed in the contract directly, through a so -called ‘severability clause. ’”). “In this connection, the intent of the parties as revealed by the express contract terms or language is generally held to to enforce the provision of the agreement prohibiting “negative public discussion,” and thus we need not address here whether such a claim might be the basis for an IRA appeal under the WPEA notwithstanding the “cease and desist” provision of the agreement. IAF, Tab 99 at 75 -76. In fact, the appellant asserted below that he continued to make disclosures after signing the agreement. IAF, Tab 35 at 18 -19. 8 Although the Board is not a “court,” it is an independent administrative establishment within the Executive Branch that exercises independent quasi judicial functions. Morgan v. U.S. Postal Service , 48 M.S.P.R. 607 , 610 (1991). It is also a forum with jurisdiction over certain IRA appeals like this one. 5 U.S.C. § 1221 (a). The agreement specifically mentions the Board and the EEOC, IAF, Tab 99 at 75, and the Board is performing the role of a “court” in this setting. Under these circumstances, and reading the agreement as a whole, we find that the Board has the authority to determine whether a provision of the agreement is illegal or unlawful. See Hinton , 119 M.S.P.R. 129 , ¶ 4. 18 be the determinative factor in deciding whether a contract is divisible, ” and “[a]n express provision that the contract shall be divisi ble . . . will generally be given considerable weight. ” Williston, supra , § 45:5; see Martin v. Department of Justice , 99 M.S.P.R. 59, ¶ 20 (2005) ( stating that i t is well settled that in construing the terms of a written settlement agreement the centerpiece of the Board’s analysis is the plain language of the agreement) , aff’d per curiam , 188 F. App’x 994 (Fed. Cir. 2006) . Here, th e express language of the agreement provides that the “balance of the agreement,” which we find include s any enforceable waiver of Board appeal rights , would remain in effect even if another provision of the agreement was found to be illegal . Th erefore , the appellant’s contention that the agreement includes an illegal provision relating to the making of protected disclosures , even if true, does not provide a basis for invalidating the agreement or its waiver provision . There is no basis to invalidate the settlement agreement based upon a finding that some of its provisions may violate public policy. ¶31 In construing the terms of a settlement agreement, a reviewing court may inquire into and decide the issue of whether the agreement is contrary to public policy, even if that issue has not been briefed by the parties . See Fomby -Denson v. Department of the Army , 247 F.3d 1366 , 1373 (Fed. Cir. 2001). Here, although not raised by the parties either below or on review, and not discussed in the initial decision, we address the issue of whether its provisions contravene public policy . ¶32 In Fomby -Denson , the appellant entered into a settlement agre ement with her former employing agency during the adjudication of her removal before the Board. Id. at 1369. T he agreement provided, as relevant here, that it “‘constitute [d] a full, complete, and final settlement of all differences and controversies, ’” the appellant’s official personnel file would be purged of all records relating to her removal , and the terms of the agreement would not be “‘publicized or divulged . . . , except as reasonably necessary to administer its terms. ’” Id. (quoting the agreem ent). After the agency referred some of the 19 conduct underlying the appellant’s removal and revealed some of the terms of the agreement to local law enforcement authorities for investigation and possible prosecution , the appellant petition ed for enforcemen t of the agreement . Id. at 1369 -71. She asserted that the criminal referral breached the agreement. Id. at 1371 -72. Alternatively, she sought to rescind the settlement agreement based on the alleged breach and reinstate her Board appeal of her removal. Id. at 1372. ¶33 An administrative judge denied the appellant’s petition for enforcement, the Board denied her petition for review of th at initial decision , and the appellant appealed the Board’s final decision to the Federal Circuit . Id. at 1371. T he court noted the well -settled doctrine that contracts that violate public policy are unenforceable , and that the appellant’s interpretation of the agreement would contravene public policy because it would bar a party from reporting possible crimes of ano ther party to law enforcement authorities . Id. at 137 3-78. The court did not rescind the agreement, however, but found that the agreement would be construed to permit the agency to make such criminal referrals. Id. at 1368 , 1378 . ¶34 The court reached a similar result in Kavanagh v. Department of Health & Human Services , 414 F. App’x 269 (Fed. Cir. 2010 ).9 There, in a settlement agreement of an IRA appeal , the appellant agreed that any claim stemming from his employment was resolved b y the agreement . Id. at 270. The agreement also included confidentiality provisions. Id. After t he administrative judge dismissed the case as settled , the appellant filed a petition for review asserting that the agreement was unlawful . Id. He claimed , in pertinent part, that the agreement prevented him from reporting fraud and other crimes against the United States . Id. The Board denied the petition for review, and the court affirmed . Id. at 269-70. 9 The Board may rely on unpublished decisions of the Federal Circuit if it finds the court’s reasoning persuasive, as we do here. See Jennings v. Social Security Administration , 123 M.S.P.R. 577 , ¶ 25 n.2 (2016). 20 ¶35 The court rejected the appellant’s contention that the agreement was unlawful because it prohibited him from rep orting crimes to appropriate officials and entities . Id. at 271. To avoid any public policy concerns such a prohibition would raise, i t read the agreeme nt as permitting such disclosures . Id. The court reasoned that “[a] potentially ambiguous provision . . . does not automatical ly render the entire agreement unlawful and does not require rescission of the entire agreement. ” Id. It therefore affirmed th e dismissal of the case as settled. Id. at 271-72. ¶36 The appellant construes the agreement as preventing him from making certain whistleblower disclosures.10 PFR File, Tab 2 at 23. Even as suming that this construction is correct and that it is against public policy , we find that the proper remedy in such a situation would not be to invalidate the agreement, but instead to interpret any offending provisions in a way that they would not violate public policy , consistent with the reasoning set forth in Fom by-Denson and Kavanagh . Thus, we find no basis to invalidate the settlement agreement based on a determination that any of its provisions violated a public policy . The settlement agreement’s waiver provision covers alleged personnel actions occurring dur ing the appellant’s employment . ¶37 Having found that there is no basis for invalidating the settlement agreement, we turn to the scope and applicability of the waiver of appeal rights in the agreement. See Rhett v. U.S. Postal Service , 113 M.S.P.R. 178, ¶ 17 (2010 ). The agreement provides, in relevant part, that in exchange for the promises made by the agency, th e appellant “agrees not to institute a law suit under . . . the Whistleblower Protection Act.” IAF, Tab 99 at 74. It also provides that the appellant “[w]aives, releases, and forever discharges the Agency . . . from any 10 This contention is inconsistent with the views of his former attorney, who opined that the settlement agreement did not prohibit the appellant from making protected disclosures, and that the agency’s counsel was aware of this understanding from the attorney’s briefing to him during the settlement negotiations. IAF, Tab 83 at 29. 21 claims, complaints, demands, cause s for actions, and damages arising out of his employment with the Agency.” Id. at 75. The agreement states that the appellant “agrees not to file any new complaints, claims, grievances, proceedings, appeals, or lawsuits in any judicial or administrative forum whatsoever (including the Merit Systems Protection Board . . .) against the Agency . . . arising out of his employment with the Agency, and all related matters.” Id. Finally, the settlement agreement provides that “no future claims or complaints of any kind arising out of Employee’s past employment with the Agency will be pursued by Employee . . . except for the purposes of enforcing this agreement.” Id. ¶38 As found by the administrative judge, the appellant has challenged in this IRA appeal personnel actions that occurred before he entered into the settlement agreement, during the 3 -month extension of his appointment after he entered into the agreement, and after h is separation from the agency. ID at 5-11; see IAF, Tab 35 at 6 -27. We first agree with the administrative judge that the agreement precludes him from challenging personnel actions that occurred before he entered into the agreement . This in clud es his claims that his supervisors extended his initial 3-year appointment by only 2 years and 1 year, respectively, publicly and privately mocked him and threatened him with adverse actions, asked him to leave senior staff meetings, told him that his appointment would not be renewed, revoked his access to NDU facilities and blocked him from sending e mails using his agency account , changed his duties, downgraded his performance evaluation, attempted to initiate an ethics inquiry against him, and required him to sign the agreement . IAF, Tab 35 at 6 -10, 12 , 14 -17. The agreement precludes the appellant from filing claims or complaints of any kind “arising out of [his] past employment with the Agency.” IAF, Tab 99 at 75. Thus, he is precluded from challenging the actions listed above . See Vogel v. Department of the Navy , 106 M.S.P.R. 451, ¶¶ 5, 8 (2007 ). ¶39 The administrative judge did not address the application of the agreeme nt to incidents occurring after it was executed but before the appellant’s employment 22 ended due to the expiration of his final 3 -month appointment . We find that the agreement precludes him from challenging personnel actions that occurred during this period . The agreement specifically precludes the app ellant from filing an appeal with the Board “arising out of his employment with the Agency .” IAF, Tab 99 at 75. The agreement contemplated that the appellant’s “employment” would last until March 31, 2012 . Id. at 74. “[C]”ontract provisions must be read as part of an organic whole, according reasonable meaning to all of the contract terms. ” Lockheed Martin IR Imaging Systems, Inc. v. West , 108 F.3d 319 , 322 (Fed. Cir. 1997). “Such an interpretation must assure that no contract provision is made inconsistent, superfluous, or redundant. ” Id. Here, t he agreement references both the appellant’s “employment” and his “past employment.” Giving effect to both of these terms, we find that the appellant’s content ion that the agency initiated a sham investigation of hi s allegations of wrongdoing after the agreement was signed , but before his employment with the agency ended , IAF, Tab 35 at 18 -20, is similarly precluded by the settlement agreement waiver . ¶40 Even assuming, however, that the waiver of Board appeal rights did not cover such alleged personnel action s, we agree with the administrative judge that the appellant did not nonfrivolously al lege that an investigation that the agency undertook during this period was a personnel action . ID at 10. While a retaliatory investigation may be a basis to grant additional corrective action if raised in connection with a covered personnel action, it i s not itself a covered personnel action that may serve as the basis for an IRA appeal . Sistek v. Department of Veterans Affairs , 955 F.3d 948 , 953-55 (Fed. Cir. 2020) . Here, the appellant did not allege that he was the subject of the investigation such that disciplinary action could result (i.e., the investigation did not concern wrongdoing on the part of the appellant) or that the investigation resulted in a covered personnel action. Accordingly, he fails to meet his burden on this claim. 23 The Board lacks jurisdiction over alleged personnel actions arising after the appellant’s employment ended . ¶41 The appellant contends that, after his employment w ith the agency ended, the agency “tr[ied] to kill my chances of employment outside CHDS .” IAF, Tab 35 at 21 . It does not appear that the waiver language in the settlement agreement precludes the appellant from challenging in an IRA appeal personnel actio ns that occurred after his employment with the agency ended . Although an appealable personnel action includes a nonselection , see King v. Department of the Army , 116 M.S.P.R. 689, ¶ 10 (2011 ), we agree with the administrative judge that the appel lant did not nonfrivolously allege that his disclosures were a contributing factor in any nonselections because he did not, among other things, identify any positions for which he applied and was not selected , ID at 11; see Rebstock Consolidation v. Department of Homeland Security , 122 M.S.P.R. 661, ¶ 12 (2015) (holding that va gue, conclusory, and unsupported allegations do not satisfy the Board’s nonfrivolous pleading standard) . ¶42 The appellant also asserted that, after his em ployment with the agency ended, it continued to ban him from the NDU campus, impeded his ability to communicate with former colleagues using their agency email addresses, kept his academic work off the agency’s website, did not permit him to attend NDU events, threatened him with a lawsuit, and accused him of violating the settlement agreement , and that the NDU Director made “offensive physical contact ” with him at a seminar . IAF, Tab 35 at 22-27. The administrative judge did not specifically address th ese allegations , and therefore we do so in the first instance here. ID at 10 -11; see Parrish v. Merit Systems Protection Board , 485 F.3d 1359 , 1362 (Fed. Cir. 2007) (finding that the Board is obligated “to determine its own jurisd iction over a particular appeal ”). ¶43 A “significant change in duties, responsibilities, or working conditions . . . with respect to an employee in . . . a cov ered positi on in an agency,” is an appealable personnel action. 5 U.S.C. § 2302 (a)(2)(A)(xii). However, t he above 24 allegations all relate to actions that allegedly occurred after his employment with the agency ended . A former employee’s appeal rights are limited to actions taken while they were in the status of being an employee or an applicant for employment. Weed v. Social Security Administration , 113 M.S.P.R. 221, ¶ 11 (2010) ; Pasley v. Department of the Treasury , 109 M.S.P.R. 105 , ¶ 10 (2008) . These actions do not , therefore, support a finding of a nonfrivolous allegation of a personnel action taken against an “employee ” in a covered position in an agency .11 ¶44 Accordingly, we find that the appellant has not made a nonfrivolous allegation of jurisdiction regarding any alleged personnel actions that are not covered by the waiver of Board appeal rights in the parties’ settlement agreement. The appellant’s other arguments do not warrant a di fferent outcome in this case. ¶45 The appellant contends that the administrative judge failed to rule on his implicit motions to strike opposing counsel for making repeated false statements, and improperly relied on those false statements on pages 4 -5 of the i nitial decision in finding that the Board lacked jurisdiction over the appeal. PFR File, Tab 2 at 3, 6-10, 14, 24 . He also claims that the administrative judge did not respond to his complaints about a pleading filed by the agency that purportedly contai ned derogatory information about him , supported his claim of false statements made by the agency’s counsel, and later “disappeared” from the Board’s electronic case file. Id. at 8-9, 11 -12, 14; see IAF, Tab s 74, 76. 11 Given this finding, we need not address the disclosures the appellant alleges were contributing factors in the actions taken after his employment ended. Even if we were to address these disclosures, however, they would not appear to be protected because the appellant alleges that they were made afte r his employment with the agency ended. IAF, Tab 35 at 20 -27; see 5 U.S.C. § 2302 (b)(8)(A) (prohibiting reprisal because of any disclosure of information “by an employee or applicant”); Amarille v. Office of Personnel Management , 28 F. A pp’x 931, 932 -33 (Fed. Cir. 2001) (agreeing with the Board that it lacked jurisdiction over an IRA appeal brought by a former Federal employee concerning the denial of a retirement annuity, reasoning that he was neither an employee nor an applicant at the time of the agency actions at issue). 25 ¶46 The administrative judge addressed th e claim regarding false statements, finding that they were not within the Board’s limited jurisdiction conferred by statute. ID at 11 n.2. The Board’s regulations provide that an administrative judge may impose sanctions upon the parties as necessary to serve the ends of justice. 5 C.F.R. § 1201.43 . An administrative judge may exclude or limit the participation of a representative for contumacious conduct or conduct prejudicial to the administration of justice. 5 C.F.R. § 1201.43 (d). The appellant has not clearly identified on review the nature of the alleged false statements. He appears to assert that the agency’s counsel falsely stated that the appellant’s strategic communications services were no longer ne eded and that all de rogatory information was removed from his personnel file consistent with the settlement agreement . PFR File, Tab 2 at 28. The appellant has not proven that these statements were false, nor has he shown that the agency’s representative otherwise engaged i n contumacious conduct or conduct prejudicial to the administration of justice. The appellant has shown no basis, therefore, for the administrative judge to have sanctioned the agency’s representative. ¶47 The appellant identifies pages 4 and 5 of the initia l decision in alleg ing that the administrative judge relied upon false statements made by the agency’s counsel in her jurisdictional ruling. As set forth above, when evaluating the Board’s jurisdiction in an IRA appeal, the question of whether the appella nt has nonfrivolously alleged protected disclosures that contributed to a personnel action must be based on whether the employee alleged sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Hessami , 979 F.3d at 1369 . Aside from stating that the agency filed a motion to dismiss the appeal for lack of jurisdiction and responded to her jurisdictional order, ID at 4 -5, there is no indication that the administrative judge relied upon any statements by the agency’s counse l in making her jurisdictional determination , see ID at 6 -11. A representative’s statement in a pleading, in any event, is not evidence. 26 Rose v. Department of Defense , 118 M.S.P.R. 302, ¶ 10 (2012 ). Accordingly, the appellant has shown no error in this regard by the administrative judge . ¶48 Finally, the appe llant contends that an agency pleading entitled , “Agency Response to Appellant Initial Discovery Response,” was removed from the electronic case f ile. IAF, Tabs 74, 76. The Board’s regulations do not require parties to file their responses to discovery r equests with the Board. 5 C.F.R. § 1201.73 (b); see Robinson v. Department of Veterans Affairs , 94 M.S.P.R. 509, ¶ 13 n.2 (2003) (citing a prior version of 5 C.F.R. § 1201.73 (c) for this principle) . In addition, t he acknowledgment order in this case informed the parties that, “[u]nless you are filing a motion to compel, you must not submit your discovery requests and responses to the Board.” IAF, Tab 4 at 3. I t further provided that, “[i]f you do, they will be rejected and returned to you.” Id. Under these circumstances, the appellant has shown no error or abuse of discretion in the apparent removal from the electronic case file of a document that should not have been filed with the Board . ¶49 Accordingly, we deny the appellant’s petition for review and affirm the initial decision as modified by this Nonprecedential Final Order. NOTICE OF APPEAL RIG HTS12 The initial decision, as supplemented by this Final Order, co nstitutes 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 12 Since the issuance of the initial decision in this 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. 27 the rights described below do not represent a statement of how courts will rule regar ding 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 a pplicable time limit may result in the dismissal of your case by your chosen forum. Please read 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 pa rticular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition 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 28 for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative recei ves this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepa yment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims 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 29 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 2 0507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Cour t of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.13 The court of appeals must receive your 13 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 co mpetent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 30 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular releva nce is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals fo r the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 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	ANDERSEN_MARTIN_DC_1221_19_0058_W_1_FINAL_ORDER_1979032.pdf	2022-11-17	null	DC-1221	NP
3,919	https://www.mspb.gov/decisions/nonprecedential/BIGHIA_DAVID_P_DE_3330_17_0045_I_1_FINAL_ORDER_1979039.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DAVID P. BIGHIA, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER DE-3330 -17-0045 -I-1 DATE: November 17, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Christopher H. Bonk , Esquire , and Renn C. Fowler, Esquire, Silver Spring, Maryland, for the appellant. Eric L. Carter , Esquire, Fort Riley, Kansas, 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, w hich denied his request for corrective action under the Veterans Employment Opportunities Act of 1998 . On petition f or review, the appellant argues that, based upon his interpretation of Boar d law, the admi nistrative judge should have 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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 determined if the agency used a proper hiring method in its selection process because such a review is not limited to situations in which an agency expands its search to include external candidates. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affe cted the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Th erefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). NOTICE OF APPEAL RIG HTS2 You may obtain rev iew of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking 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 situati on 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 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. 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 ap pealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriat e U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decisio n before you do, then you must 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 disabl ing condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decis ion before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 5 Office of Federal Oper ations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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, 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 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D .C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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	BIGHIA_DAVID_P_DE_3330_17_0045_I_1_FINAL_ORDER_1979039.pdf	2022-11-17	null	DE-3330	NP
3,920	https://www.mspb.gov/decisions/nonprecedential/BRUCE_TERENCE_CH_0752_17_0006_X_1_FINAL_ORDER_1979075.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD TERENCE BRUCE, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER CH-0752 -17-0006 -X-1 DATE: November 17, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Robert P. Erbe , Esquire, Tucson, Arizona, for the appellant. Megan E. Gagnon , Detroit, Michigan, 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 petition to enf orce the Board’s final order mitigating his suspension. On July 21, 2017, the administrative judge ordered the agency to submit evidence that it provided the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 appellant with back pay from September 16, 2016 , to January 6, 2017, with interest and adjusted b enefits. Bruce v. Department of Homeland Security , MSPB Docket No. CH -0752 -17-0006 -C-1, Compliance File, Tab 8, Compliance Initial Decision. ¶2 On September 13, 2017, the agency produced evidence that it complied with the initial decision and provided the appellant with back pay and interest. Bruce v. Department of Homeland Security , MSPB Docket No. CH -0752 -17-0006 -X-1, Compliance Referral File (CRF), Tab 2. The appellant did not respond to this evidence despite being informed that he could do so. CRF, T ab 1 at 3. In light of the agency’s evidence and in the absence of any response from the appellant, we find the agency in compliance. ¶3 Accordingly , we find the agency in compliance and DISMISS the petition for enforcement. This is the final decision of t he Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)). NOTICE 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 attor ney 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. 3 NOTICE OF APPEAL RIG HTS2 You may obtain review of this fi nal decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking 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 rig hts described below do not represent a statement of how courts will 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 whic h one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of you r discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your repres entative receives this decision before you do, then you must 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 informat ion for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your rep resentative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EE OC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C . § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 6 disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2 302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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 Cir cuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants b efore the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expir ed 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 App eals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Contact information for the courts of appeals can be found at their respective website s, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	BRUCE_TERENCE_CH_0752_17_0006_X_1_FINAL_ORDER_1979075.pdf	2022-11-17	null	CH-0752	NP
3,921	https://www.mspb.gov/decisions/nonprecedential/DELGADO_ADAM_CH_1221_16_0514_W_1_FINAL_ORDER_1978419.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ADAM DELGADO, Appellant, v. DEPARTMENT OF JUSTIC E, Agency. DOCKET NUMBER CH-1221 -16-0514 -W-1 DATE: November 16, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Adam Delgado , Fort Meade, Maryland, pro se. Joshua Henline and Katherine Bolton , Washington, D.C., for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has petitioned for review of the February 24, 2017 initial decision in this individual right of action appeal. Petition for Review (PFR) 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 precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Tab 1; Initial Appeal File, Tab 15, Initial Decision. For the reasons set forth below, we DISMISS the appeal as settled. ¶2 After the filing of the petition for review, the appe llant submitted a document titled “Appellant’s Motion to Withdrawal [sic] his IRA,” and the agency submitted a document titled “SETTLEMENT AGREEMENT,” which was signed and dated by the parties on March 5, 2021. PFR File, Tabs 9 -10. The settlement agreeme nt provides, among other things, that the appellant agreed to withdraw his pending MSPB appeals in exchange for the promises made by the agency.2 PFR File, Tab 9. ¶3 Before dismissing a matter as settled, the Board must decide whether the parties have ente red 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, independe nt 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 enforceme nt by the Board. PFR File, Tab 9. 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., 2 While the settlement agreement provides for dismissal of all pending MSPB appeals, it explicitly excludes the separate enforcement action, Delgado v. Department of Justice , MSPB Docket No. NY-1221 -09-0299 -X-1. PFR File, Tab 9 at 4. 3 the parties normally may not refile this appeal) is appropriate under these circumstances, and we accept the settlement agreement into the record for enforcement purposes. ¶5 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of F ederal Regulations, section 1201.113 ( 5 C.F.R. § 1201.113 ). NOTICE TO THE PARTIE S OF THEIR ENFORCEMENT RIGHTS If the agency or the appellant has not fully carried out the terms of the agreement, either party may ask the Board to enforce the settlement agreement by promptly filing a petition for enforcement with the office that issued the initial decision on this appeal. The petition should contain specific reasons why the petitioning p arty believes that the terms of the settlement agreement have not been fully carried out, and should include the dates and results of any communications between the parties. 5 C.F.R. § 1201.182 (a). NOTICE OF APPEAL RIG HTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summ ary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which case s fall within their jurisdiction. If you wish to seek review of this final decision, you should 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the 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. 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 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 . Contact information for U.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 ad dressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to yo u only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction . The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 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 Feder al Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respe ctive websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	DELGADO_ADAM_CH_1221_16_0514_W_1_FINAL_ORDER_1978419.pdf	2022-11-16	null	CH-1221	NP
3,922	https://www.mspb.gov/decisions/nonprecedential/DORKIN_THOMAS_SF_0752_17_0179_I_1_FINAL_ORDER_1978424.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD THOMAS DORKIN, Appellant, v. DEPARTMENT OF JUSTIC E, Agency. DOCKET NUMBER SF-0752 -17-0179 -I-1 DATE: November 16, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Peter H. Noone , Esquire, Belmont, Massachusetts, for the appellant. Margo L. Chan , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has petitioned for review of the September 25, 2017 initial decision in this appeal. Initial Appeal File, Tab 41, 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 required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Review (PFR) File, Tab 4. For the reasons set forth below, we DISMISS the petition for review as settled. ¶2 After the filing of the petition for review, the p arties submitted a document entitled “MOTION TO DISMISS PETITION FOR REVIEW AS SETTLED AND ENTER AGREEENT INTO RECORD FOR ENFORCEMENT” signed and dated by the parties on October 9, 2020. PFR File, Tab 10. The document provides, among other things, that t he appellant agreed to withdraw with prejudice the petition for review pending in the above -captioned appeal in exchange for the promises made by the agency. Id. at 5. ¶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 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, independe nt 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 and understand its terms, and that they intend for the agreement to be entered into the recor d for enforcement by the Board. PFR File, Tab 10. In addition, we find that the agreement is lawful on its face and freely entered into. Id. Accordingly, we find that dismissing the petition for review “with prejudice to refiling” (i.e., the parties no rmally 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 te rms of the agreement, either party may ask the Board to enforce the settlement agreement by promptly filing a petition for enforcement with the office that issued the initial decision on this appeal. The petition should contain specific reasons why the petitioning party believes that the terms of the settlement agreement have not been fully carried out, and should include the dates and results of any communications between the parties. 5 C.F.R. § 1201.182 (a). NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this 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. 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 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have que stions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must f ile a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov /probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 5 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Fe deral Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after you r representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of an y requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your rep resentative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 6 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 2050 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 dispos ition of allegations of a prohibited personnel p ractice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court o f Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by a ny court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whis tleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	DORKIN_THOMAS_SF_0752_17_0179_I_1_FINAL_ORDER_1978424.pdf	2022-11-16	null	SF-0752	NP
3,923	https://www.mspb.gov/decisions/nonprecedential/HOWARD_ERVIN_CH_0752_17_0175_I_1_FINAL_ORDER_1978428.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ERVIN HOWARD, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER CH-0752 -17-0175 -I-1 DATE: November 16, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Ervin Howard , Hillsboro, Ohio, pro se. Nicholas E. Kennedy , Esquire, Akron, Ohio, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his involuntary resignation claim for lack of jurisdiction. For the following reasons, we VACATE the initial decision and DISMISS the appeal as untimely filed with no good cause shown fo r the delay. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 agency instructed the appellant to report for a reasonable suspicion drug test , and he was unable to produce a urine specimen , allegedly due to “shy bladder .” Initial Appeal File (IAF), Tab 14 at 23 -24. T he agency, in keeping with its shy bladder protocol, provided him with an appropriate amount of water to drink, but the appellant was still unable to produce a specimen. IAF, Tab 13, Tab 14 at 23 -24. The agency alleged that it unsuccessfully attempted to schedule another opportunity for the appellant to provide a specimen and, because he failed to do so, the agency issued a notice of proposed removal on the charge of refusal to take a drug test. IAF, Tab 13, Subtabs 1, 8, 12. After considering the appel lant’s oral and written responses , the deciding official issued a decision removing the appellant effective November 17, 2016. Id., Subtab 13. The letter advised the appellant of his right to file an appeal with the Board. Id. ¶3 The appellant filed this a ppeal on January 23, 2017. IAF, Tab 1. In addition to the acknowledgment order , the administrative judge issued separate notices apprising the appellant of the burdens and elements of establishing an involuntary resignation2 and for showing that his appe al was either timely filed or that good cause existed for the delay . IAF, Tabs 2 -4. The agency responded on the timeliness issue , and, when the administrative judge ordered it to respond to her jurisdictional order on the involuntary resignation issue, t he agency declined to do so, asserting that it had removed the appellant pursuant to its November 14, 2016 decision letter. IAF, Tab s 6, 10, 12 , Tab 13, Subtab 13. In his sole response, the appellant did not claim that he resigned and instead asserted that the agency removed him effective November 17, 2016 . IAF, Tab 14 at 3. He also address ed the merits of the removal action but did not address the apparent untimeliness of his appeal . Id. at 3 -4. He included numerous documents 2 Although the appellant never allege d that he resigned involuntarily, part E of the Standard Form 52 included with his initial appeal indicated that he may have resigned several days before the agency effected his remova l. IAF, Tab 14 at 26. 3 concerning the merits of his appeal, none of which address the timeliness issue. Id. at 5-37. ¶4 Without holding a hearing, the administrative judge issued an initial decision that dismissed the appeal for lack of jurisdiction, finding that the appellant failed to make a nonfr ivolous allegation that his resignation was involuntary. I AF, Tab 17, Initial Decision at 6. In his timely filed petition for review, the appellant asserts that the agency “messed up” his paperwork , and he insists that he did not resign to avoid termina tion. Petition for Review File, Tab 1 at 4. In that regard, he provides corrected paperwork , which in dicate s that the agency removed him effective November 17, 2016. Id. at 5-8. He reiterates his argument that he could not produce a urine sample due to medical issues. Id. at 4, 9. The agency did not respond. DISCUSSION OF ARGUME NTS ON REVIEW ¶5 Although the administrative judge deemed this an involuntary resignation appeal, as noted above, neither of the par ties argue that this is true. Given the appellant’s insistence that he did not resign , this is an appeal of the agency’s action removing him for his alleged refusal to take a reasonable suspicion drug test. IAF, Tab 13, Subtabs 12 -13. The record reflects that the agency effected the appell ant’s removal on November 17, 2016. Id., Subtab 13. The appellant electronically filed his appeal to the Board 68 days later, on January 23, 2017. IAF, Tab 1. ¶6 Generally, an appeal must be filed no later than 30 days after the effective date, if any, o f the action being appealed, or 30 days after the date of receipt of the agency ’s decision, whichever is later. 5 C.F.R. § 1201.22 (b)(1). Thus, the appellant filed his appeal 38 days la te. The Board will dismiss an appeal not filed within the time limit unless the appellant establishes good cause for the delay in filing. 5 C.F.R. § 1201.22 (c). The appellant bears the burden of proof on the issue of the timeliness of his appeal. 5 C.F.R. § 1201.56 (b)(2)(i) (B). 4 ¶7 Good cause for a delay in filing exists whe n the appellant shows that he exercised due diligence or ordinary prudence under the particular circumstances of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R. 180 , 184 (1980 ). In making this determination, the Board will consider the length of the delay, the reasonableness of the excuse, whether the appellant is pro se, and whether he has presented evidence of circumstances beyond his control that affected his ability to comply with the time limits. McClendon v. Office of Personnel Management , 92 M.S.P.R. 250 , ¶ 8 (2002); see Moorman v. Department o f the Army , 68 M.S.P.R. 60 , 62 -63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) ; Alonzo , 4 M.S.P.R. at 184. If the appellant asserts that there was good cause for his delay because a medical condition affected or impaired his ability to file a timely appeal, then he must identify the time period during which he suffered from an illness; submit medical evidence showing that he suffered from the illness during that time period; and explain how the illness prevented him from timely filing the appeal. Lacy v. Departme nt of the Navy , 78 M.S.P.R. 434 , 437 (1998). ¶8 Although the appellant is proceeding pr o se , no matter how minimal the delay, the Board will not waive its regulatory filing deadline whe n a good reason for the delay is not shown. E.g., Cabarloc v. Department of Veterans Affairs , 112 M.S.P.R. 453 , ¶ 10 (2009). As noted above, the administrative judge gave the appellant ample notice of his burden on the issue of timeliness, IAF, Tab 4, and the agency provided additional notice when it argued that the appeal sh ould be dismissed as untimely filed, IAF, Tab 6, but the appellant failed to address the timeliness issue in any of his submissions below or on review. T hus, th e undisputed facts of this case demonstrate that the appeal was untimely wi thout good cause shown for the delay , and the appellant was not entitled to his requested hearing. IAF, Tab 1 at 2; see Persons v. U.S. Postal Service , 75 M.S.P.R. 428 , 433 (1997) (dismissing the appeal as untimely filed without good cause shown because the appellant failed to submi t sufficient evidence to raise a nonfrivolous allegation on the factual issues affecting timeliness) . 5 ¶9 Because this is a straightforward removal appeal, and the appellant does not claim an involuntary resignation, our timeliness analysis does not require us to determine whether the agency took an appealable action, and we find that the issues of timeliness and jurisdiction in this case are not “inextricably intertwined .” Dancy -Butler v. Department of the Treasury , 80 M.S.P.R. 421 , ¶ 8 (1998) (finding that only when jurisdiction and timeliness are inextricably intertwined, e.g., a case involving an alleged involuntary or constructi ve action, must a jurisdictional finding be made before an appeal may be dismissed as untimely) . Therefore, we need not first decide an issue of jurisdiction here , and we vacate the initial decision with respect to the jurisdictional analysis. See Hanna v. U.S. Postal Service , 101 M.S.P.R. 461 , ¶¶ 4, 6 (2006) ¶10 Accordingly, we vacate the initial decision and dismiss the appeal as untimely filed with no good cause shown for the delay. This is the Board ’s final decision in this matter. 5 C.F.R. § 1201.113 . NOTICE OF APPEAL RIGHTS3 You may obtain review of this fi nal decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking 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 rig hts described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropri ate in any matter. 6 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide whic h one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellan t seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Gu ide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warr ants that any attorney will accept representation in a given case. 7 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of you r discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a represe ntative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discriminatio n based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/C ourt_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case, and your representative receives this decision before you do, then 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: 8 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhanc ement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in s ection 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 201 8, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 9 If you submit a petition for judici al review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practi ce, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Prote ction Board appellants before the Federal Circuit. The 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	HOWARD_ERVIN_CH_0752_17_0175_I_1_FINAL_ORDER_1978428.pdf	2022-11-16	null	CH-0752	NP
3,924	https://www.mspb.gov/decisions/nonprecedential/BURKEY_TERENA_M_AT_1221_16_0027_W_1_FINAL_ORDER_1978437.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD TERENA M. BURKEY, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER AT-1221 -16-0027 -W-1 DATE: November 16, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Janice K. Bowden , Mountain Home, Tennessee, for the appellant. Kathleen Pohlid , Esquire, Nashville, Tennessee, 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 February 8, 2017 initial decision in this appeal. Petition for Review (PFR) File, Tab 1. For the reasons set forth below, we DISMISS the appeal as settled. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 ¶2 After the filing of the petition for review, the parties submitted a document entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant on September 5, 2018, and by the agency on September 10, 2018. PFR File, Tab 3 at 7. The document provides, among other things , that the appellant agreed to withdraw the above -captioned 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 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 acc epting a settlement agreement into the record for enforcement purposes, the Board must determine whether the agreement is lawful on its face and whether the parties freely entered into it . See Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) , overruled on other grounds by Delorme v. Department of the Interior , 124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) ( holding that the Board may enforce settlement agreements that have been entered into the record, independent of any prior finding of Board jurisdiction over the underlying matter being settled). ¶4 Here, we find that the parties have entered into a settlement agreement, understand its terms, and do not intend for the agreement to be entered into the record for enforceme nt by the Board. PFR File, Tab 3 . As the parties do not intend for the Board to enforce the settlement agreement, we need not address the additional considerations regarding enforcement, and we do not enter the settlement agreement into the record for enforcement by the Board. ¶5 In light of the foregoing , we find that dismissing the appeal “with prejudice to refiling” (i.e., the parties normally may not refile this appeal) is appropriate under these circumstances. This is the final decisi on of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R. § 1201.113 ). 3 NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriat e for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applica ble to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choice s of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise 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 particu lar relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services p rovided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, th en you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and 5 to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in th is case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it mu st be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option appli es to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 6 disposition of allegations of a prohibited 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.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 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 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at 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	BURKEY_TERENA_M_AT_1221_16_0027_W_1_FINAL_ORDER_1978437.pdf	2022-11-16	null	AT-1221	NP
3,925	https://www.mspb.gov/decisions/nonprecedential/FINCH_GREGORY_LEONARD_AT_1221_20_0167_W_1_REMAND_ORDER_1978447.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD GREGORY LEONARD FINC H, Appellant, v. DEPARTMENT OF THE AR MY, Agency . DOCKET NUMBER AT-1221 -20-0167 -W-1 DATE: November 16. 2022 THIS ORDER IS NONPRECEDENTIAL1 Gregory Leonard Finch , Fort Walton Beach, Florida, pro se . Brandon Iriye , Esquire, United States Army Garrison Daegu , South Korea , for the agency . BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member REMAND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition for review , 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 VACATE the initial decision, and REMAND the case to the Atlanta Regional Office for further adjudication in accordance with this Remand Order. BACKGROUND ¶2 The appellant is a Food Program Manager at Fort Rucker in Alabama . Initial Appeal File (IAF), Tab 9 at 134. In 2019, he filed a complaint with the Office of Special Counsel (OSC), alleging that, in retaliation for his engaging in various protected activities, he was not selected for several positions . IAF, Tab 12 at 21-23. The appellant identified his protected activit ies as filing an administrative grievance in 2010 , contacts with an equal employment opportunity (EEO) officer between 2012 and 2014 , and a complaint to the agency’s Office of the Inspector General (OIG) in May 2018. Id. at 21, 29, 32 . He alleged that in retaliation for these activities , he was not interviewed for several vacancies between June and October of 2019. Id. at 21, 32. OSC subsequently closed its inquiry into the matter and informed the appellant of his right to file an IRA appeal with the Board. Id. at 32-33. ¶3 The appellant subsequently filed the instant IRA appeal. IAF, Tab 1 at 1-5. The administrative judge informed the appellant of his burden of proof regarding jurisdiction . IAF, Tab 3. The agency moved to dismiss the appeal, and the appellant responded to the agency’s motion. IAF, Tab 8 at 10-11, Tab 10 at 6. The administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 13, Initial Decision (ID). She found that the appellant’s EEO contacts and administrative grievance were not protected activity. ID at 4-5. However, s he found his OIG complaint was protected activity. ID at 5. Nonetheless , she found that the appellant failed to meet his burden of nonfrivolously alleging that his OIG complaint was a contributing factor in his nonselections. Id. She based this finding largely on the declarations of the individuals on the hiring committees for the vacancies, who declared that they had no knowledge of the appellant’s OIG complaint and were not influenced by 3 any individual with such knowledge. Id. She was not persuaded by the appellant’s claim that he emailed a hiring committee member discussing his “EEO and [O]IG issues.” Id. She reasoned that the appellant did not submit the emails in question . Id. Accordingly, the administrative judge found that the appellant failed to nonfrivolously allege the knowledge prong of the knowledge/timing test . Id. ¶4 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. He alleges that he provided copies of his emails with the hiring committee member below and also attache s them to his petition. Id. at 5-7. The agency has responded to his petition for review, and the appellant has replied t o its response. PFR File, Tabs 3-4. DISCUSSION OF ARGUME NTS ON REVIEW ¶5 The Board has jurisdiction over an IRA appeal if the appellant has exhausted his administrative remedies before OSC and makes nonfrivolous allegations that (1) he made a protected disclosure described un der 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 disc losure or protected activity was a co ntributing factor in the agency’ s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302 (a)(2)(A) .2 Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016). The administrative judge correctly found that the appellant exhausted h is administrative remedies with OSC . ¶6 Without specifically making a finding, the administrative judge implicitly found that the appellant exhausted his administrative remedies with regard to his administrative grievance, EEO claims, and 2018 OIG complaint. ID at 4; IAF, Tab 12 at 21. Additionally, she implicitly found that the appellant exhausted his 2 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. Carney v. Department of Veterans Af fairs , 121 M.S.P.R. 446, ¶ 11 (2014). 4 administrative remedies regarding four personnel actions, namely, his nonselection for four vacancies . ID at 4 n.1 ; IAF, Tab 8 at 8, Tab 12 at 21, 32 . She found , however, that the appellant did not exhaust with OSC a 2019 OIG complaint that he submitted below . ID at 4 n.2 ; IAF, Tab 12 at 46-47. The parties do not challenge these findings on review, and we see no reason to disturb them . The administrative judge correctly found that the appellant’s administrative grievance and EEO complaints were not protected but that hi s OIG complaint was a protected activity . ¶7 The appellant here exhausted his administrative remedies regarding three activities: his 2010 administrative g rievance, his 2012 -2014 EEO complaints, and his 2018 OIG complaint. We address them in turn. ¶8 The administrative judge found that the appellant’s administrative grievance and EEO activity were not protected activities for purposes of this IRA appeal. ID at 4-5. The parties do not challenge th ese finding s on review, and we decline to disturb them . The Board’s IRA jurisdiction covers reprisal for exercising “any appeal, complaint, or grievance right . . . with regard to remedying a violation of [5 U.S.C. § 2302 (b)(8)].” 5 U.S.C. § 2302 (b)(9)(A)(i); see 5 U.S.C. § 1221 (a); Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365, ¶ 7 (2013). However, the Board’s jurisdiction does not cover claims arising under section 2302(b)(9)(A)(ii), which includes grievance and EEO claims filed for reasons other than remedying a violation of section 2302(b)(8). 5 U.S.C. § 1221 (a); Mudd , 120 M.S.P.R. 365, ¶ 7; see also Young v. Merit Systems Protection Board , 961 F.3d 1323 , 1329 (Fed. Cir. 2020) .3 3 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals for the Federal Circuit on these types of whistleblower issues. However, pursuant to the All Circuit Review Act , Pub. L. No. 115 195 , 128 Stat. 1510 , appellants may file petitions for judicial review of Board decisions in whistleblower reprisal cases with any circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703 (b)(1)(B). Therefore, we must consider these issues with the view that the appellant may seek review of this decision before any appropriate court of appeal. 5 ¶9 The substance of the appellant’s grievance here did not concern remedying an alleged violation of section 2302(b)(8), but rather, his assignment of work in relation to his position description. IAF, Tab 12 at 41-42. Therefore, insofar as the appellant alleged that the agency took personnel actions in reprisal for his grievance, we agree with the administrative judge that the Board lacks jurisdiction to consider such allegations in the context of this IRA appeal. Mudd , 120 M.S.P.R. 365, ¶ 7. ¶10 As to the appellant’s complaints to an EEO officer about various actions by his supervisors which he perceived as abusive , the r ecord does not appear to contain the appellant’s communications with the EEO office r. IAF, Tab 12 at 29, 32, 35. However, the appellant provided emails which are seemingly his attempts to rectify the situation with management. Id. at 51-57. The emails seek to remedy allegedly hostile behavior from management officials but do not attribute that hostility to any prior alleged whistleblowing . The appellant has not separately alleged that he sought to remedy whistleblower reprisal in his contacts with the EEO officer. Accordingly, we agree with the administrative judge that the appellant failed to nonfrivolously allege that his complaints to the EEO officer were protected activities . ¶11 Finally, the administrative judge found that the appellant’s 2018 OIG complaint was a p rotected activity under section 2302(b)(9). ID at 5. The parties do not challenge this finding on review, and we agree with the administrative judge. Regardless of the content of the disclosure itself, section 2302(b)(9)(C) protects disc losures of information to the Inspector General, and the Board has recognized that disclosures to the OIG are protected. 5 U.S.C. § 2302 (b)(9)(C); see Corthell v. Department of Homeland Security , 123 M.S.P.R. 417, ¶¶ 9-13 (2016) (determining that the Board has IRA jurisdiction over a claim that an agency retaliated against an employee because it perceived him as having engaged in the protected activity under section 2302(b)(9)(C) of reporting matters to the agency’s OIG) . The appellant here provided a copy of his 2018 complaint 6 to the OIG and a letter from the OIG acknowled ging receipt of his complaint . IAF, Tab 12 at 37, 40. Accordingly, we agree with the administrative judge that the appellant nonfrivolously alleged that he engaged in protected activity by filing the 2018 OIG complaint . The appellant has sufficiently m ade a nonfrivolous allegation that his OIG complaint was a contributing factor in his nonselections . ¶12 The administrative judge found that the appellant failed to meet his burden of proof regarding contributing factor. ID at 5. The appellant on review reasserts that an individual on the hiring committee s, as well as a management official , had knowledge of his protected activity. PFR File, Tab 1 at 5-7; IAF, Tab 9 at 131, Tab 10 at 6, 29 -30, Tab 12 at 21-22, 24 . We agree with the appellant that he met his jurisdictional burden . ¶13 The final jurisdictional issue an appellant must establish is whether he made a nonfrivolous allegation that his disclosure or activity was a contributing factor in the nonselection decision s. Nasuti v. Department of State , 120 M.S.P.R. 588, ¶ 7 (2014). To satisfy the contributing factor criterion at the jurisdictional stage of an IRA appeal, the appell ant only need raise a nonfrivolous allegation that the fact or the content of the protected activity was one factor that tended to affect the personnel a ction in any way. Bradley v. Department of Homeland Security , 123 M.S.P.R. 547, ¶ 13 (2016). One way to establish this criterion is the knowledge/timing test, under which an employee may nonfr ivolously allege that the disclosure was a contributing factor in a personnel action through circumstantial evidence, such as evidence that the official who took the personnel action knew of the protected activity or was influenced by someone who knew of the activity and that the personnel action occurred within a period of time such that a reasonable person could conclude that the protected activity was a contributing factor in the personnel action. Id., ¶¶ 13, 15. ¶14 At this stage, the appellant can meet his burden of proof without specifically identifying which management officials were responsible for the 7 reprisal . Id., ¶ 16. The burden to establish jurisdiction is the appellant’s, but, when the personnel action at issue is a nonselection, the evidence concerning who was involved in the selection process, what they knew about the appellant’s protected disclosures, and who may have influenced their decision is exclusively within the agency’s possession. Id. The app ellant both below and on review provided a September 2019 email exchange between himself and a member of three different hiring committees for positions for which the appellant applied. PFR File, Tab 1 at 6-7; IAF, Tab 9 at 131, Tab 10 at 29-30. In the e mail exchange, the appellant discusse d being referred for several positions but not being interviewed. IAF, Tab 10 at 29-30. He further remark ed that there were some individuals at the location to which he applied that he “had dealings with, either EEO, [O]IG, or just plain told them they were wrong.” Id. The individual on the hiring committees responded to this email. Id. at 29. ¶15 The record below reflects that this individual was a panel member for a Food Services Specialist position, which the appel lant applied to, that was filled in early October 2019. IAF, Tab 9 at 4, 24. The agency provided r ésumé scoring sheets from the panel members for this position . Id. at 43-46. T he appellant was the only individual on the certificate of eligibles whose ratings are not included on the sheet . Id. at 24-25, 43 -46. The record further reflects that th e individual the appellant emailed in September 2019 was also a panel member for a “[Contracting Officer’s Representative] Food Service Specialist” position, for which the appellant applied, that was also filled in early October 2019. Id. at 66, 81. Additionally, this individual was also a panel member for a “Battalion Food Service Specialist” position, for which the appellant applied, that was filled in late August 2019 , which predates the panel member’s alleged knowledge of the appellant’s OIG complaint. IAF, Tab 8 at 84, Tab 10 at 29-30. As to the fourth vacanc y for which the appellant exhausted his administrative remedies, a Food Service Specialist positi on filled in late July 2019, this individual was not on the hiring panel. IAF, Tab 8 at 37. 8 ¶16 Although the record is unclear as to what role this individual played in the hiring decision s, or what authority he had, the appellant has nonfrivolously alleged that he had knowledge of the appellant’s OIG complaint prior to two October 2019 nonselections at issue in this IRA appeal. We thus find that the appellant has sufficiently met the knowledge prong of the knowledge/timing test. Bradley , 123 M.S.P.R. 547, ¶ 16 (finding an appellant met his jurisdictional burden as to contributing factor when he alleged that s enior agency officials with knowledge about his protected disclosures conspired with others not to select him for the position at issue) . Moreover, these nonselections occurred within 1 month after the appellant informed the member of the hiring panel of his OIG complaint, and less than 2 years after the OIG complaint itself. PFR File, Tab 1 at 6-7; IAF, Tab 12 at 40, Tab 9 at 4, 66. We therefore find that the appellant has sufficiently met the timing prong of the knowledge/timing test as well. See Mast rullo v. Department of Labor , 123 M.S.P.R. 110, ¶ 21 (2015) (finding a personnel action taken within approximately 1 to 2 year s of the appellant’s protected disclosures satisfied the knowledge/timing test). To the extent the individual on the hiring panel declared that he was unaware of the appellant’s OIG complaint, we find that this constitutes a mere factual contradiction of the appellant’s otherwise adequate prima facie showing of jurisdiction, and we thus may not weigh the evidence and resolve the conflicting assertions of the parties. See Carney v. Department of Veterans Affairs , 121 M.S.P.R. 446, ¶ 11 (201 4) (explaining that, at the jurisdictional stage, an administrative judge may not weigh the evidence, and the agency’s evidence may not be dispositive) ; see also Hessami v. Merit Systems Protection Board , 979 F.3d 1362 (Fed. Cir. 2020) (“[W] hether the appellant has non-frivolously a lleged protected disclosures that contributed to a personnel action must be determined based on whether the employee alleged sufficient factual matter, accepted as true, to state a claim that is plausible on its face .”). As such, we find that the appellan t has nonfrivolously alleged that his OIG 9 complaint was a contributing factor in his two October 2019 nonselections and remand this appeal for adjudication on the merits. Nasuti , 120 M.S.P.R. 588, ¶ 9. ¶17 The appellant further alleged that the L ogistics Readiness Center (LRC) Director was aware of the appellant’s OIG complaint and had retaliated against the appellant by influencing individuals involved in his nonselections. IAF, Tab 12 at 21-22, 24. Any doubt or ambiguity as to whether the appellant has made nonfrivolous alle gations should be resolved in favor of finding jurisdiction. Bradley , 123 M.S.P.R. 547, ¶ 6; see Nasuti , 120 M.S.P.R. 588, ¶¶ 8-9 (explaining that at the jurisdictional stage, an appellant’s uncontroverted allegation of knowledge is sufficient; he does not have to present evidence of actual knowledge ). In light of the nature of the alleged personnel actions , we find the appellant has nonfrivolously alleged the knowledge prong of the knowledge/timing test. As discussed above, he filed his OIG complaint less than 2 years before his other two nonselections in July and August 2019. IAF, Tab 8 at 37, 84, Tab 12 at 40. We therefore find that the appellant has nonfrivolously alleged that he met the timing prong of the knowledge/timing test as well . Mastrullo , 123 M.S.P.R. 110, ¶ 21. To the extent the members of the hiring panels declared they were not influenced by the LRC Director in the appellant’s nonselections, we will not weigh this evidence at this point in the proceedings . Carney , 121 M.S.P.R. 446, ¶ 11. Accordingly, we find that the appellant has nonfrivolously alleged that his OIG complaint was a contributing factor in his July and August 2019 nonselections and remand this appeal for adjudication of the merits of these alleged nonselections as well. Nasuti, 120 M.S.P.R. 588, ¶ 9. ¶18 Accordingly, we vacate the initial decision. On remand, the administrative judge may reimplement h is prior findings regarding the appellant’s grievance and EEO complaints in his remand initial decision. The administrative judge shall then determine whether the appellant established by preponderant evidence that his 2018 OIG complaint was a contributing factor in the nonselections in question . If the administrative judge finds that the appellant has met his burden, 10 he shall determine whethe r the agency has met its burden to show by clear and convincing evidence that it would have made the same hiring decisions absent the appellant’s protected activity . ORDER ¶19 For the reasons discussed above, we remand this case to the Atlanta Regional Offic e for further adjudication in accordance with this Remand Order . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	FINCH_GREGORY_LEONARD_AT_1221_20_0167_W_1_REMAND_ORDER_1978447.pdf	Date not found	null	AT-1221	NP
3,926	https://www.mspb.gov/decisions/nonprecedential/JONES_MATTHEW_A_CH_0752_15_0610_I_2_FINAL_ORDER_1978572.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MATTHEW A. JONES, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER CH-0752 -15-0610 -I-2 DATE: November 16, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 William Simpson , Esquire, Philadelphia, P ennsylvania, for the appellant . Miriam Dole , Philadelphia, Pennsylvania, for the agency. BEFORE Cathy A. Ha rris, Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sustained his demotion from Supervisor of Customer Service to Level 5 Mail Handler Equipment Operator . Generally, we grant petitions such as this one only in the following circum stances: the initial decision contains erroneous findings 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 The following facts, as further detailed in the initial decision, are not disputed. The appellant was a Supervisor o f Customer Service at the agency’s Newmarket Station in Canton, Ohio. Jones v. U.S. Postal Service , MSPB Docket No. CH -0752 -15-0610 -I-1, Initial Appeal File (IAF), Tab 1 at 1; Jones v. U.S. Postal Service , MSPB Docket No. CH-0752 -15-0610 -I-2, Appeal File , Tab 14, Initial Decision (ID) at 2.2 In December 2014, while off -duty, the appellant sent a coworker in the same position a number of text messages. ID at 2-3. Among other things, the appellant’s messages proposed that they have sex. Id. The messages persisted even after this coworker responded by stating that she was not interested. Id. As a result, the agency proposed the appellant’s removal for “improper conduct.” ID at 3 -4. The appellant responded, in part alleging that he was under the influe nce of prescription medications at the time of his conduct. IAF, Tab 11 at 19, 25 -26. The deciding official sustained the charge but reduced 2 Below, t he administrative judge granted the appellant’s request and dismissed the initial appeal without prejudice for automatic refiling at a later date, resulting in the two docket numbers associ ated with this one matter. IAF, Tab 21 , Initial Decision ; ID at 4. 3 the penalty, demoting him to a Level 5 Mail Handler Equipment Operator. Id. at 19-22; ID at 4. ¶3 The appellant fil ed the instant appeal alleging, inter alia, that the demotion was an unreasonable penalty because he was under the influence of prescribed medications during the alleged misconduct. IAF, Tab 1 at 2 -3. At a prehearing conference, he stipulated to sending the text messages and waived any affirmative defenses. IAF, Tab 16. The administrative judge held the requested hearing and sustained the demotion. ID at 11. The appellant has filed a petition for review. Jones v. U.S. Postal Service , MSPB Docket No. CH-0752 -15-0610 -I-2, Petition for Review (PFR) File, Tabs 1 -2. The agency has filed a response. PFR File, Tab 4. ¶4 In his petition, the appellant does not dispute that he sent the messages or that they were inappropriate. PFR File, Tab 1 at 3. Instead, he seems to reassert that the penalty was unreasonable because he was in a compromised mental state when he sent the messages. Id.; IAF, Tab 1 at 2-3. According to the appellant, he has spontaneous blackouts with memory loss, during which he reportedly says and does things but is unaware of his own words and actions. PFR File, Tab 1 at 3. He further asserts that his previous representative erred by failing to submit medical records showing that he is prescribed Valium , which has side effects including memory loss. Id. The appellant also alleges that he is physically unable to perform the position to which he was demoted. Id. We find no merit to these arguments. ¶5 Whe n, as here, all of the agency’s charges have been sustained, the Board will review an agency’s imposed penalty only to determine if the agency considered all of the relevant factors and exercised management discretion within tolerable limits of reasonableness. See Portner v. Department of Justice , 119 M.S.P.R. 365 , ¶ 10 (2013 ), overruled on other grounds by Singh v. U.S. Postal Service , 2022 MSPB 15 , ¶ 17 . The Board will modify a penalty only when 4 it finds that the agency failed to weigh the relevant factors or that the penalty the agen cy imposed clearly exceeded the bounds of reasonableness. Id. ¶6 The administrative judge found that the deciding official considered the relevant factors and the chosen demotion did not exceed the bounds of reasonableness. ID at 7 -11. Accordingly, she dec lined to modify the penalty. Id. Among other things, the administrative judge found that the demotion was a reasonable penalty given the nature and seriousness of the misconduct, the appellant’s higher standard of conduct as a supervisor, and his limited rehabilitation potential, as reflected by his various responses to the misconduct. Id. We agree. ¶7 Throughout the agency’s investigation and the instant appeal, the appellant has provided a number of explanations for his grossly inappropriate text messag es. IAF, Tab 11 at 54. The appellant has alleged that he was not interested in his coworker and merely sent the messages t o address rumors that they already were engaged in a sexual relationship. Id. at 19, 25-26. The appellant also, at times, has sugg ested that he did not believe the messages were inappropriate or unwanted due to the existing relationship he had with the recipient and their prior interactions. IAF, Tab 1 at 2-3, Tab 11 at 36 -37. However, when confronted with the messages during the a gency’s investigation, the appellant described being “shocked and offended” by his own words. IAF, Tab 15 at 6. ¶8 Alternatively , the appellant asserted that the chain of text messages included in the record is incomplete because, as part of the same conve rsation, he also sent texts that said “I am not sexually harassing you.” Id. Yet, he reportedly has no memory of the more explicit messages sent at the same time because he was in a Valium -induced blackout. IAF, Tab 1 at 2 -3, Tab 15 at 6 -7. As the administrative judge recognized, the appellant has essentially asked the Board to believe that he blacked out only at the times the inappropriate messages were 5 written and sent but not when he responded with the messages he says are missing. ID a t 9. ¶9 Although the appellant has reasserted the alleged Valium -induced blackouts and memory loss on review, we agree with the administrative judge’s conclusion that his allegations do not warrant modifying the agency’s chosen penalty. ID at 8-11; see Cro sby 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 sh e 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). The deciding official considered the appellant’s allegation that he was under the influence of prescription medications when she rendered her decision. IAF, Tab 11 at 19, 21. Nevertheless, she found that this did not warrant further mitigation of the penalty, noting that the appellant failed to present any corroborating evidence. Id. ¶10 The record before us is similarly devoid of any corroborating evidence, such as medical records, to support the app ellant’s bare assertion. PFR File, Tab 1 at 3, Tab 2 at 3. Without any such evidence, the appellant’s claims are inherently improbable and inconsistent. See generally Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458 (1987) (recognizing that pertinent credibility factors include, inter alia, any prior inconsistent statements , the absence of corroborating evidence, and the inherent improbability of the witness’s version of events). Further, to the extent that he attributes this absence of corroborating evidence to his representative, it is well -settled that an appellant is responsible for the errors of his chosen representative. Sofio v. Internal Revenue Service , 7 M.S.P.R. 667 , 670 (1981). ¶11 For the same reason, the appellant’s alleged medical inability to perform the posit ion to which he was demoted also fails. PFR F ile, Tab 1 at 3; IAF, Tab 15 at 7-8. Aside from his bare assertions, the appellant has not presented any 6 evidence that he is medically unable to perform the duties of a Level 5 Mail Handler Equipment Operator. ¶12 Accordingly , we affirm the initial decision, sustaining the appellant’s demotion. 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 appe al 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 t he dismissal of your case by your chosen forum. Please read 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). 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 can not advise which option is most appropriate in any matter. 7 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of 8 discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.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 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This 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 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 decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appea ls for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’ s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Cir cuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 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 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	JONES_MATTHEW_A_CH_0752_15_0610_I_2_FINAL_ORDER_1978572.pdf	2022-11-16	null	CH-0752	NP
3,927	https://www.mspb.gov/decisions/nonprecedential/NICHOLSON_STANLEY_CH_0752_17_0004_X_1_FINAL_ORDER_1978584.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD STANLEY NICHOLSON, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER CH-0752 -17-0004 -X-1 DATE: November 16, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Robert P. Erbe , Esquire, Tucson, Arizona, for the appellant. Megan E. Gagnon , Detroit, Michigan, 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 petition to enfo rce the Board’s final order mitigating his suspension. On July 21, 2017, the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been id entified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 administrative judge ordered the agency to submit evidence that it provided the appellant with back pay from September 16, 2016, to January 5, 2017, with interest and adjusted be nefits. Nicholson v. Department of Homeland Security , MSPB Docket No. CH -0752 -17-0004 -C-1, Compliance File, Tab 8, Compliance Initial Decision. ¶2 On September 13, 2017, the agency produced evidence that it complied with the initial decision and provided the appellant with back pay and interest. Nicholson v. Department of Homeland Security , MSPB Docket No. CH -0752 -17- 0004 -X-1, Compliance Referral File (CRF), Tab 2. The appellant did not respond to this evidence despite being informed that he could do so. C RF, Tab 1 at 3. In light of the agency’s evidence and in the absence of any response from the appellant, we find the agency in compliance. ¶3 Accordingly, we find the agency in compliance and dismiss the petition for enforcement. This is the final decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)). NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set out at Title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal. 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 a nd the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to 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: 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the 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 Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Prote ction Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action in volves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and 5 to waiver of any requirement of prepayment of fees, costs, or other secur ity. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request f or 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 describ ed in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of co mpetent 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 whistleblo wer claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 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	NICHOLSON_STANLEY_CH_0752_17_0004_X_1_FINAL_ORDER_1978584.pdf	2022-11-16	null	CH-0752	NP
3,928	https://www.mspb.gov/decisions/nonprecedential/MENDIOLA_FROYLAN_SF_1221_13_0440_B_1_FINAL_ORDER_1977942.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD FROYLAN MENDIOLA, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER S SF-1221 -13-0440- B-1 SF-0752 -13-0436- B-1 DATE: November 15 , 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Acrivi Coromelas, Esquire, Barbara Enloe Hadsell, Esquire and Mary T. Ross , Esquire, Pasadena, California, for the appellant. Ronald P. Ackerman, Esquire, Culver City, California, for the appellant. Amy L. Dell , San Diego, California, for the agency. John Yap and Janet W. Muller, Chula Vista, California, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt, Member 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order 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 agency has filed a petition for review of the remand initial decision in these joined individual right of action and removal appeals, which reversed the appellant’s removal and granted corrective action. On petition for review, the agency argues that the appellant did not exhaust his remedies before the Office of Special Counsel, did not prove that his protected disclosures and protected activity were contributing factors in the agency’s actions, and did not prove his affirmative defenses of reprisal for his protected disclosures and for assisting his coworker with his equal employment opportunity complaints . It also contends that it proved its charge in support of the appellant’s removal. 2 Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). In addition, the Board must defer to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on 2 The agency asserts that, if the Board does not reverse the initial decision, it should remand the case for consideration of new evidence in support of its charge. Petition for Review Fil e, Tab 1 at 39, 42 -64. Even assuming that this evidence was previously unavailable before the close of the record below despite the agency’s due diligence, the agency has not shown that the evidence is material to our determination in this case, i.e., tha t it would warrant an outcome different from that of the initial decision. See, e.g., West v. Department of Health & Human Services , 122 M.S.P.R. 434 , ¶ 6 n.2 (2015). Moreover, there is no indication that the agency based its charge upon this evidence and provided the appellant with an opportunity to review it before taking its action. 5 C.F.R. § 752.203 . Therefore, we deny the agency’s request. 3 observing the demeanor of witnesses testifying at a hearing; the Board may overturn such d eterminations only when it has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice, 288 F.3d 1288 , 1301 (Fed. Cir. 2002). 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 here in,3 we AFFIRM the initial decision.4 ORDER ¶2 We ORDER the agency to cancel the appellant’s removal and retroactiv ely restore him effective April 23, 2013. 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. ¶3 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, no later than 60 calendar days after the date of this decision. We ORDER the appellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to 3 To prove a charge of medical inability to perform based on a current medical condition, the agency must prove that the appe llant’s medical condition prevents him from being able to safely and efficiently perform the core duties of his position. Haas v. Department of Homeland Security , 2022 MSPB 36, ¶¶ 15, 20. We affirm the initial decision as modified to find that, under the standard set forth in Haas , and based upon the findings in the initial decision, the agency did not meet its burden. 4 Under the Whistl eblower 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 appeal must be analyzed under the burden- shiftin g standards set forth in 5 U.S.C. § 1221 (e). See 5 U.S.C. § 1221(e), (i); Alarid v. Department of the Army , 122 M.S.P.R. 600 , ¶ 12 (2015). The appellant’s protected activity under 5 U.S.C. § 2302 (b)(9)(B) o ccurred before, and his removal occurred after, the WPEA took effect. We affirm the initial decision in this case as modified to find that the WPEA applies in this matter. See Pridgen v. Office of Management & Budget , 2022 MSPB 31, ¶¶ 50-51. 4 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 calen dar 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 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). ¶6 For agencies whose payroll is administered by either the National Finance Center of the De partment of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all documentation necessary to process payments and adjustments resulting from the Board’s decision in accordance with the attached lists so that payment can be made within the 60 -day period set forth above. NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUEST ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set forth at T itle 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The 5 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 TO THE PARTIES 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 investi gation related to this decision is pending, “no disciplinary action shall be taken against any employee for any alleg ed prohibited activity under investigation or for any related activity without the approval of the Special Counsel.” 5 U.S.C. § 1214 (f). NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUEST 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 may be found at 5 C.F.R. §§ 1201.201 , 1201.202 and 1201.204. In addition, the Whistleblower Protection Enhancement Act of 2012 authorized the award of compensatory damages including interest, reasonable expert witness fees, and costs, 5 U.S.C. § 1214 (g)(2), which you may be entitled to receive. 6 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 OF APPEAL RIG HTS5 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismis sal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of revie w rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 7 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the 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 attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that 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 8 you do, then you must file w ith the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court- appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 9 (3) Judicial review pursuant to the Whistleblower Protection Enha ncement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court o f appeals of competent j urisdiction 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 competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 10 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations DFAS BACK PAY CHECKLIST The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following checklist to ensure a request for payment of back pay is complete. Missin g documentation may substantially delay the processing of a back pay award. More information may be found at: https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx. NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by vendor pay, not DFAS Civilian Pay. ☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the specific dates of the back pay period within the ticket comments. Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket comments as to why the documentation is not applicable: ☐ 2) Settlement agreement, administrative determination, arbitrator award, or order. ☐ 3) Signed and completed “Employee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). *Do not process online SF 50s 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 sever ance pay received by the employee upon separation. Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment they may have received. The payroll office must collect the debt from the back pay award. The annual leave will be restored to the employee. Annual leave that exceeds the annual leav e ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g). NATIONAL FINANCE CENTER CHECKLIST FOR BA CK PAY CASES Below is the information/documentation required by National Finance Center to process payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit Systems Protection Board, EEOC, and courts . 1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information describing what to do in accordance with decisi on. 2. The following information must be included on AD -343 for Restoration: a. Employee name and social security number. b. Detailed explanation of request. c. Valid agency accounting. d. Authorized signature (Table 63). e. If interest is to be included. f. Check mailing address. g. Indicate if case is prior to conversion. Computations must be attached. h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected (if applicable). Attachments to AD -343 1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium, etc. with number of hours and dates for each entitlement (if applicable). 2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and 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.	MENDIOLA_FROYLAN_SF_1221_13_0440_B_1_FINAL_ORDER_1977942.pdf	Date not found	null	S	NP
3,929	https://www.mspb.gov/decisions/nonprecedential/DOYLE_JOCELYN_LISA_PH_3443_17_0116_I_1_FINAL_ORDER_1978019.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JOCELYN LISA DOYLE, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER PH-3443 -17-0116 -I-1 DATE: November 15, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jocelyn Lisa Doyle , Boonsboro, Maryland, pro se. Julie Rebecca Zimmer , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL OR DER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed for lack of jurisdiction her appeal of her nonselection for a Lead Dental Assistant position in the agency’s Martinsburg, West Virginia facility. On petition for re view, the appellant renews her argument that, in failing to select her 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 for the position, the agency applied employment practices that violated basic requirements set forth in 5 C.F.R. § 300. 103, and thus she is entitled to a hearing regarding her nonselection. Petition for Review (PFR) File, Tab 1 at 4, Tab 5 at 4-8.2 She further alleges that the agency violated her rights under the Uniformed Services Employment and Reemployment Rights A ct (USERRA) and seeks to file an individual right of action (IRA) appeal, alleging that she has new evidence that management has retaliated against her for whistleblowing. PFR File, Tab 1 at 4-5, Tab 5 at 8 -10. ¶2 Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and ma terial evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulation s, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review with respect to her claims that the agency viol ated a requirement of 5 C.F.R. 2 The appellant makes additional arguments regarding her nonselection that we do not consider because she first raised the arguments in her reply to the agency’s opposition to her petition for review and has not shown that they are based on new and material evidence not previously available despite her due diligence. PFR File, Tab 5 at 4 -8; see Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980) (stating that 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 previou sly availabl e despite the party’ s due diligence). Moreover, her arguments are not relevant to the issue of whether the Board has jurisdiction over her employment practices claim. 3 § 300.103 or USERRA.3 Accordingly , 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). We FORWARD the appellant’s claims of whistleblower reprisal to the Board’s Northeastern Regional Office to docket as a new IRA appeal. ¶3 The administrative judge pro vided the appellant with an opportunity to identify her claims regarding the nonselection as retaliation for whistleblowing, but she did not do so, instead advancing the above -referenced employment practices claim. Initial Appeal File (IAF), Tab 2 at 4 -5, Tab 5 at 3 -4. On review, the appellant has clarified that she is alleging that her nonselection and a subsequent removal from her duties as a Dental Assistant were taken in reprisal for whistleblowing, and she seeks to file an IRA appeal.4 PFR File, Tab 1 at 4 -5, Tab 5 at 8 -10. The appellant also filed a separate IRA appeal with the Board’s Northeast ern Regional Office that contained related claims of reprisal. Doyle v. Department of Veterans Affairs , MSPB Docket No. PH -1221 -18-0012 -W-3, Initial Decisi on (June 29, 2019) . Following a court ordered remand in that matter, Doyle v. Department of Veterans Affairs , 855 F. App’x 753 (Fed. Cir. 2021), the administrative judge granted the appellant’s request for corrective action as to the agency’s decision to convene the Administrative Investigation Board to investigate the appellant, her temporary reassignment to the mailroom and library, and her reassignment to the Advanced Medical Support Assistant position. Doyle v. Department of Veterans Affairs , MSPB Doc ket No. PH -1221 - 18-0012 -M-1, Remand Initial Decision (Dec. 14, 2021 ). The remand initial 3 Although the appellant alleges on review that the agency violated USERRA, we find that the administrative judge properly concluded that the appellant is not a veteran, and she has not indicated that she is a member of a uniformed service, performed duty in a uniformed service, or has an obligation to perform such a duty. See Initial Appe al File, Tab 12 at 53, Tab 31, Initial Decision at 2, 4; see also 38 U.S.C. § 4311 (a). 4 The appellant first alluded to these allegations in her prehearing statement, filed below. IAF, Tab 19 at 14 -16, 23 -25. However, we find that these allegations were not sufficiently clear for the administrative judge to conclude that the appellant was r aising a claim of retaliation for whistleblowing. 4 decision be came the final decision of the B oard when neither party filed a petition for review . In forwarding the claims of whistleblower reprisal raised by the appe llant in the instant matter for docketing as a new IRA appeal , the Board makes no finding on the prec lusive effect of the court decision or remand initial decision on the forwarded claims. NOTICE OF APPEAL RIG HTS5 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriat e for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applica ble to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read 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 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which op tion is most appropriate in any matter. 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 available at the court’s website, www.cafc.uscourts.gov. Of partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative re ceives this decision before 6 you do, then you must 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: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 7 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to yo u only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federa l Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of a ppeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 8 If you are i nterested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respec tive websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	DOYLE_JOCELYN_LISA_PH_3443_17_0116_I_1_FINAL_ORDER_1978019.pdf	2022-11-15	null	PH-3443	NP
3,930	https://www.mspb.gov/decisions/nonprecedential/HOLMES_SHERMAN_BRISCOE_CH_0752_14_0714_I_1_FINAL_ORDER_1978177.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SHERMAN BRISCOE HOLM ES, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER CH-0752 -14-0714 -I-1 DATE: November 15, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Julius L. Carter , Esquire, Dayton, Ohio, for the appellant. Demetrious A. Harris , Esquire, Cincinnati, Ohio, 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 sustained his removal. Generally, we grant petitions such as this one only when: the initial decision contains erroneous findings of material fact; t he initial decision is based on an erroneous interpretation of statute or regulation or 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 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. 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 . Except as expressly modified to address an additional consideration in the penalty determination, we AFFI RM the initial decision, still sustaining the removal . BACKGROUND ¶2 The agency removed the appellant from his position as a Medical Support Assistant in the Dental Service at a Veterans Affairs (VA) Medical Center facility in Ohio, effective July 11, 2014, bas ed on a charge of inappropriate conduct. Initial Appeal File (IAF), Tab 4 at 20, 39. The charge was based on four specifications: (1) mishandling a December 5, 2013 telephone call from a nurse who needed to speak to a dentist to obtain post -surgical ant ibiotics and pain medication for a veteran; (2) mishandling another December 5, 2013 telephone call by leaving a veteran on hold for 1 hour before instructing him to call back the next day to make an appointment; (3) placing a veteran’s wife on hold withou t her consent for 48 minutes before disconnecting her November 21, 2013 call and placing her on hold for 12 minutes during her January 2, 2014 call; and (4) calling his female coworker s “bitches” and using obscene language during a facilitated training mee ting on March 7, 2014. Id. at 39 -40. ¶3 The agency informed the appellant that, in proposing his removal, it considered his prior discipline consisting of a 14 -day suspension beginning 3 August 26, 2011, for failure to follow supervisory instructions and ina ppropriate conduct, and his prior 14 -day suspension beginning April 15, 2010, for inappropriate conduct. Id. at 40. Both of those disciplinary actions occurred during his employment at the VA Nursing Service before his reassignment to the Dental Service. Id. at 7, 39 . ¶4 After holding a 3 -day hearing, the administrative judge issued an initial decision finding that the agency proved specifications 1 and 4 , sustaining the inappropriate conduct charge, and finding that the appellant failed to prove his affirmative defenses of harassment based on sexual orientation and retaliation for filing a police report against his supervisor. IAF, Tabs 34, 37, 40, Hearing Compact Di scs (HCDs); IAF, Tab 41, Initial Decision (ID) at 1 , 3-25. The administrative judge also found that the deciding official’s personal knowledge of the appellant’s prior disciplinary history did not constitute a violation of constitutional due process because the appellant was advised in the proposed remova l notice that his prior discipline would be considered and he was aware of his personal history with the deciding official. ID at 18 . The administrative judge found that the deciding official appropriately considered the relevant factors set forth in Douglas v. Veterans Administration , 5 M.S.P.R. 280 (1981) , that the sustained misconduct was serious, that there was nexus between the misconduct and a legitimate Government interest, and that the penalty of removal was within the tolerable bounds of reasonableness. ID at 13, 18 -21. ¶5 The appellant has filed a petition for review arguing the following : (1) the agency violated his due p rocess rights; (2) the administrative judge abused her discretion by denying the appellant an opportunity to file a post -hearing brief; (3) the administrative judge erroneously concluded that the agency proved specifications 1 and 4; and (4) the appellant’ s post-traumatic stress disorder (PTSD) should have been considered as a mitigating factor in the initial decision. Petition for Review (PFR) File, Tab 1 at 9 -16. 4 DISCUSSION OF ARGUME NTS ON REVIEW The administrative judge correctly determined that the appellant failed to prove that he was denied due process . ¶6 When an agency intends to rely on aggravating factors, such as prior discipline, as the basis for imposing a penalty, such factors should be included in the advance notice of adverse action so that the employee will have a fair opportunity to respond to those factors before the agency’s deciding official. Lopes v. Department of the Navy , 116 M.S.P.R. 470 , ¶ 6 (2011). It is improper for a deciding official to rely on an employee’s alleged negative past work record in determining the penalty when the employee was not disciplined for the purported misconduct and which is mentioned a s an aggravating factor for the first time in a Board proceeding. Id. (citing Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368 , 1376 (Fed. Cir. 1999) ). ¶7 The Board’s reviewing court has held that, if an employee has not been given “notice of any aggravating factors supporting an enhan ced penalty [,]” an ex parte communication with the deciding official regarding such factors may constit ute a constitutional due process violation. Ward v. U.S. Postal Service , 634 F.3d 1274 , 1280 (Fed. Cir. 2011).2 When such circumstances are pr esent, the court directed the Board to analyze whether the additional aggravating factors supporting an enhanced penalty constituted new and material information under the factors set forth in Stone . Id. ¶8 Pursuant to Stone , the Board will consider the following factors, among others, to determine whether an ex parte contact is constitutionally impermissible: 2 The U.S. Court of Appeals for the Federal Circuit’s reasoning rests on the decision of the U.S. Supreme Court in Cleveland Board of Education v. Loudermill , 470 U.S. 532 , 538-39, 546 -48 (1985), which held that a tenured public employee has a constitutionally protected property interest in ongoing public employment and that an agency may not deprive such an employee of his property interest without providing him with due process of law, including the right to advance notice of the charges against him, an explanation of the agency’s evidence, and an opportunity to respond. See Stone , 179 F.3d at 1374 -76. 5 (1) whether the ex parte c ommunication merely introduces “cumulative” information or new information; (2) whether th e 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 result in undue pressure upon the deciding official to rule in a particular manner. Stone , 179 F.3d at 1377. If a const itutional violation has occurred, it cannot be considered a harmless error and the agency action must be reversed. See Ward , 634 F.3d at 1280. ¶9 In his petition for review, the appellant alleges that the administrative judge erred in not finding a due pro cess violation under the U.S. Court of Appeals for the Federal Circuit’s decisions in Ward and Stone . PFR File, Tab 1 at 9 -14. The appellant argues that the agency denied his due process rights by failing to inform him that the deciding official consider ed misinformation about a prior removal action. Id. at 12 -13. The appellant argues that the deciding official received ex parte information in a Douglas factor checklist, which incorrectly stated that the appellant’s past disciplinary history included a removal. Id. at 12; IAF, Tab 4 at 24-28. The appellant argues that the agency did not inform him in the proposal notice that a prior removal action would be considered, although he was informed that the agency would consider his two prior 14 -day suspensi ons. PFR File , Tab 1 at 12 -13; IAF, Tab 4 at 39 -41. He further argues that he did not have a prior removal and he had no opportunity to correct this misinformation upon which the deciding official relied. PFR File, Tab 1 at 12. ¶10 The record does not suppo rt a finding that the agency failed to notify the appellant of an aggravating factor actually relied upon by the deciding official. The deciding official testified that he considered the Douglas factors in reaching his decision to remove the appellant, bu t he did not prepare the Douglas factor checklist attached to his removal decision. IAF, Tab 34, HCD (testimony of the deciding official) . Although the deciding official testified that he assumed the checklist was accurate, he further testified that he a ssumed that the removal mentioned on the checklist only referred to the removal he was implementing in 6 this case. Id. He also testified that the only past disciplinary actions he considered were two 14 -day suspensions, noting that he believed that he showed mercy to the appellant when he was the deciding official in one of the actions that resulted in the appellant’s suspension. Id. The deciding official did not testify that he considered or relied upon a prior removal or a proposed removal in addition to the suspensions identified in the proposal notice. Moreover, the appellant acknowledged that the agency provided notice that his two 14 -day suspensions would be considered by the deciding official. PFR File, Tab 1 at 12. ¶11 The administrative judge consi dered but rejected the appellant’s argument that the deciding official violated his due process rights and placed unfair emphasis on his past interaction with the appellant and his previous discipline. ID at 17 -18; PFR File, Tab 1 at 12 -14. A review of t he initial decision shows that the administrative judge properly evaluated the hearing testimony and made credibility determinations in accordance with the standards set forth in Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458 (1987). ID at 5 -13; see Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 105 -06 (1997) (finding no reason to disturb the administrative judge’s findings when she considered the evidence as a whole, drew appropriate references, and made reasoned conclusions); Broughton v. Department of Health & Human Services , 33 M.S.P.R. 357, 359 (1987) (same). ¶12 The appellant has not shown that the deciding official’s decision, on the merits of the underlying charge or the penalty to be imposed, was influenced by new and material information not previously disclosed to the appellant.3 First, 3 The appellant filed a prior appeal with the Board challenging the agency’s decision to remove him from service effective August 26, 2011, for failure to follow supervisory instructions and inappropriate conduct. IAF, Tab 4 at 97. The agenc y settled that appeal, by agreeing to reinstate the appellant, reassign him to a Medical Support Assistant position in the Dental Service, and mitigate the penalty to a 14 -day suspension. Id. The Medical Center Director who signed the settlement agreement is the same official who decided to remove the appellant effective July 11, 2014, for the inappropriate conduct charged in this case. Id. at 99. The agency’s notice of proposed removal in this case advised the appellant that the agency would consider his past record, including his 2011 suspension, in determining the proper disciplinary action. 7 the deciding official’s testimony reflects that he was not introduced to new and material ex parte information about a prior removal action involving the appellant . Second, the appellant was aware that the deciding official also was involved in the settlement that mitigated his removal to a 14-day suspension , which was referenced in the proposal notice; therefore, the appellant had a chance to respond to it. Third, we find no evidence that the deciding official’s personal knowledge of the appellant’ s past discipline was of the type likely to result in undue pressure to make any particular decision in this case. See Stone , 179 F.3d at 1376 -77; see also Norris v. Securities & Exchange Commission , 675 F.3d 1349 , 1353-54 (Fed. Cir. 2012) ( finding that a deciding official’s mere knowledge of an employee ’s earlier misconduct obtained before starting disciplinary proceedings was not new and material information and did not constitute an improper ex parte communication). We therefore find that the appellant did not prove that his due process rights were violated. The administrative judge did not abuse her discretion by disallowing post -hear ing briefs . ¶13 On review, the appellant also argues that the administrative judge abused her discretion by reversing her prior decision to allow post -hearing briefs. PFR File, Tab 1 at 18. We find that the appellant has not shown that the administrative jud ge prejudiced his substantive rights or abused her discretion by disallowing post -hearing briefs after affording the appellant a 3 -day hearing to present his case on his appeal. It is within the administrative judge’s discretion to keep the record open fo r a period of time after the hearing to allow the parties to submit additional evidence and argument. See 5 C.F.R. § 1201.59 (a). Moreover, the appellant has not identified any new evide nce, which the administrative judge’s ruling allegedly precluded him from presenting and would have warrant ed Id. at 40. Thus, the appellant knew that this prior history would be considered, and he was awar e that the deciding official had personal knowledge of the prior removal action that was settled and resulted in the 2011 suspension. 8 an outcome different from that of the initial decision. Therefore, the appellant has shown no basis for reversing the initial decision. See Russ o v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980) ( stating that the Board will not grant a petition for review based on new evidence absent a showing that it is of sufficient weight to warrant an outcome different from that of the initial decision). The administrative judge correctly found that the agency proved the charge of inappropriate conduct . ¶14 The Board’s regulations require that the agen cy action must be sustained if it is supported by a preponderance of the evidence. 5 C.F.R. § 1201.56 (b)(1)(ii). On review, the appellant argues that the agency failed to prove that he was the employee who mishandled the December 5, 2013 telephone call from the nurse in specification 1. PFR File, Tab 1 at 14 -15. The appellant also challenges the administrative judge’s finding that the agency proved specification 4. Concerning that spe cification, the appellant argues that he should not be penalized for speaking candidly as requested by management, and that the Deputy Service Chief “expected people to offend each other” during the meeting. Id. at 16. The appellant further argues that h e did not direct his offensive words at any particular person and that he stopped using offensive language when directed to do so during the meeting. Id. at 18. ¶15 The administrative judge considered the documentary evidence and the witnesses’ testimony during the 3 -day hearing, and she found that the agency proved by preponderant evidence specifications 1 and 4 and the inappropriate conduct charge. ID at 3 -13. Reg arding specification 4, the administrative judge compared the agency’s version of events during the meeting —that the appellant said words to the effect of “I want to help people, but when she’s a BITCH, and she’s a BITCH, and she’s a BITCH, I just want to say FUCK IT!” —with the appellant’s version —he only stated during the meeting that he “ wanted to call [his female coworker s] bitches or other derogator y words.” ID at 9 -12; IAF, 9 Tab 4 at 40 (emphasis in original), 87; IAF, Tab 37, HCD (testimony of the appellant). The administrative judge found the appellant’s version of the events “less credible.” ID at 11. The administrative judge based this finding on the appellant’s inconsistent statements, the largely consistent statements by agency witnesses that w ere reduced to writing shortly after the March 7, 2014 training meeting, the consistency of those written statements with the live testimony of an agency witness who was present at the meeting, and the “straightforward” demeanor of that agency witness.4 ID at 11 -12. ¶16 The Board must give deference to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing; the Board may overturn such determin ations only when it has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002). Contr ary to the administrative judge, we do not find the appellant’s statements —that he did not tell his supervisors about bullying based on sexual orientation, but he told the deciding official during his reply to the notice of proposed removal that the bullyi ng was based on sexual orientation —to be inconsistent. ID at 11. However, our disagreement with the administrative judge on this issue does not warrant a different outcome because it is well established that when, as here, an administrative judge has hea rd live testimony, her credibility determinations must be deemed to be at least implicitly based upon the demeanor of the witnesses. 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”); Little v. Department of Transportation , 112 M.S.P.R. 224 , ¶ 4 (2009). Therefore, the administrative judge’s credibility determinations are 4 The administrative judge further found that this agency witness had no personal history with the appellant, w as not the target of the derogatory term, and had no motive to exaggerate her testimony. ID at 11 -12. 10 entitled to deference and the appellant has not presented sufficiently sound reasons to overturn her findings. ¶17 Ultimately, w e discern no reason to reweigh the evidence or substitute our assessment of the record evidence for the thorough, well -reasoned, demeanor -based findings of the administrative judge. See Crosby , 74 M.S.P.R. at 105-06; Broughton , 33 M.S.P.R. at 359. We affirm her finding that the agency proved specifications 1 and 4. Moreover, on review, the appellant does not specifically dispute that the two sustained specifications are more than sufficient to sustain the charge. See Burroughs v. Department of the Army , 918 F.2d 170 , 172 (Fed. Cir. 1990). ¶18 Although the appellant also claims that the administrative judge omitted certain material facts, an administrative judge’s failure to mention all of the evidence of recor d does not mean that she did not consider it in reaching her decision. PFR File, Tab 1 at 11; 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). The appellant’s arguments on review present no reason to disturb the administrative judge’s finding that the agency proved by preponderant evidence specifications 1 and 4 and the inappropriate conduct charge. The removal penalty was reasonable for the sustained misconduct . ¶19 Whe n, as here, all of the agency ’s charges are sustained, but some of the underlying specifications are not sustained, the agency ’s penalty determin ation is entitled to deference and should be reviewed only to determine whether it is within the parameters of reasonableness. Payne v. U.S. Postal Service , 72 M.S.P.R. 646 , 650 (1996) . ¶20 The deciding official considered many relevant mitigating and aggravating factors, such as the following : the appellant had 3 years and 11 months of service; his conduct was serious and offensive to his coworker s; and he had two prior 14 -day suspensions for engaging in similar inappropriate conduct. ID at 14 -15; IAF, Tab 4 at 24 -28, Tab 34, HCD (testimony of the deciding official). 11 The deciding official determined that removal was reasonable and rehabilitation was not possible under the circumstances because (1) the appellant’s misconduct was serious and offensive , (2) he showed no remorse , and (3) he e ngaged in inappropriate conduct after two previous 14 -day suspensions for similar inappropriate conduct. ID at 17 -18. The administrative judge found that the agency weighed the relevant factors in implementing the appellant’s removal, and the penalty of rem oval does not exceed the bounds of reasonableness. ID at 14-16, 18 -21. ¶21 On review, the appellant reiterates that some of his coworkers made anti-gay statements and used anti -gay slurs in his presence , which created a hostile work environment , these coworker s were present during the March 7, 2014 training meeting, and he and his coworker s were encouraged during this meeting to discuss issues that were going on in the office to improve the work environment. PFR File, Tab 1 at 5, 9 -10. The record reflect s that the deciding official and the administrative judge did not specifically consider the appellant’s allegations of harassment or bullying based on sexual orientation in their respective penalty analyses.5 This was error. The deciding official and the administrative judge should have considered the appellant’s allegations of bullying and harassment based on sexual orientation in this regard under Douglas factor 11, “mitigating circumstances surrounding the offense, such as unusual job tensions . . . [a nd/or] . . . harassment.” Douglas , 5 M.S.P.R. at 305; see Hanna v. Department of Labor , 80 M.S.P.R. 294, ¶ 16 (1998) (stating that the 5 For example, in the Douglas factors worksheet, the deciding official indicated that he did not consider any mitigating circumstances such as unusual j ob tensions, personality problems, harassment, or provocation by others involved. IAF, Tab 4 at 27 -28. The deciding official testified that the appellant presented, as a mitigating circumstance, that he was treated differently due to his sexual orientati on, but the deciding official was not asked, and he did not explain, how the appellant was treated differently. IAF, Tab 34, HCD (testimony of the deciding official). The administrative judge discussed the appellant’s allegations of harassment or bullyin g in her evaluation of specification 4 and the appellant’s sexual orientation discrimination claim, ID at 10 -11, 13, 21 -23, but she did not specifically discuss them in her penalty analysis, ID at 14 -16, 18 -21. 12 Board may consider in its penalty analysis the stress and tension cre ated in a work environment when there is animus based on the appellant’s national origin even if it finds that the agency did not discriminate against the appellant). ¶22 Therefore, we modify the initial decision to consider , as a mitigating factor, the appellant’s statements in the record and his testimony regarding bullying and harassment in the workplace created by his coworker s’ anti -gay statements and slurs in his presence, the fact that the coworker s that made the statements and slurs were present during the March 7, 2014 meeting, and that he and his coworker s were encouraged to raise issues during this meeting to improve the office work environment. IA F, Tab 4 at 87, Tab 21 at 20 -25, Tab 37, HCD (testimony of the appellant). For the purposes of our analysis, we credit the appellant’s statements and testimony in this regard, and we make clear that the offensive language described by the appellant cannot and should not be tolerated in the workplace. However, these circumstances do not justify or explain the appellant’s use of profane and offensive language during the March 7, 2014 training meeting, and we likewise do not condone his use of such language in the workplace. Moreover, these circumstances have no relation to specification 1, which we have also sustained herein. We conclude that such evidence does not warrant mitigation of the removal penalty. ¶23 The appellant further argues that his PTSD and si de effects of his medication should have been considered as mitigating factors in the initial decision. PFR File, Tab 1 at 18. We find, however, that these factors were properly considered. ID at 15 -16. The administrative judge found that the appellant did not provide any medical evidence to the deciding official and that the deciding official did not consider the condition as a mitigating factor. ID at 15. The administrative judge considered the appellant’s testimony that he did not recall informing the deciding official that he had PTSD, and that he did not believe that his disability affected his ability to do his job. Id.; IAF, Tab 37, HCD (testimony of the a ppellant ). The administrative judge also considered that 13 the appellant submitted evidence on appeal showing that he first sought a doctor’s assessment on the day that he received the removal notice and that neither his physician’s letter nor the testimony of witnesses at the hearing attributed the appellant’s inappropriate conduct to a medical condition. ID at 15. The appellant submits no new and material evidence to the contrary on review. We therefore agree with the administrative judge’s finding that the agency did not err in failing to consider the appellant’s PTSD as a mitigating factor . ¶24 Having considered the appellant’s arguments, w e find that removal for the sustained misconduct is within the limits of reasonableness and promotes the efficiency of the service. We affirm the initial decision as modified and sustain the appellant’s removal. NOTICE OF APPEAL RIG HTS6 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 th is final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and care fully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 6 Since the issuance of the initial decisio n in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 14 Please read carefully each of the three main possible choices of review below to decide which one applies to 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 15 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 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.us courts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you h ave a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the E EOC by regular U.S. mail, the address of the EEOC is: 16 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method re quiring a signature, 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 o f 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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.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 f or judicial review of MSPB 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. 17 If you submit a petition for j udicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional informa tion about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of P ractice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	HOLMES_SHERMAN_BRISCOE_CH_0752_14_0714_I_1_FINAL_ORDER_1978177.pdf	2022-11-15	null	CH-0752	NP
3,931	https://www.mspb.gov/decisions/nonprecedential/JONES_JOHN_PAUL_DE_4324_16_0239_X_1_FINAL_ORDER_1978182.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JOHN PAUL JONES, III , Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Agency. DOCKET NUMBER S DE-4324 -16-0239 -X-1 DE-3330 -16-0151 -X-1 DATE: November 15, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 John Paul Jones, III , Albuquerque, New Mexico, pro se. Laura VanderLaan , Esquire, Kansas City, Missouri, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 On November 25, 2016, the administrative judge issued a compliance initial decision finding the agency in noncompliance with an August 17, 2016 settlement agreement, which had been entered into the record for enforcement by the Board 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonp recedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identi fied by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 in the joined underlyi ng appeals, MSPB Docket Nos. DE-0432 -16-0239 -I-1 (lead) and DE -3330 -16-0151 -I-1. Jones v. Department of Health & Human Services , MSPB Docket No. DE -4324 -16-0239 -C-1, Compliance File (CF), Tab 10, Compliance Initial Decision (CID). Accordingly, the admini strative judge granted the appellant’s petition for enforcement and ordered the agency to comply with its obligations under the settlement agreement. CID at 5 -6. For the reasons discussed below, we now find the agency in compliance and DISMISS the petiti on for enforcement. DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶2 On August 17, 2016, the parties entered into a settlement agreement resolving the appellant’s joined appeals, in which he had challenged under the Uniformed Services Employment and Re employment Rights Act and the Veterans Employment Opportunities Act the agency’s determination that he was not qualified for a Public Health Advisor position at either the GS -13 or the GS -14 level because he failed to demonstrate the required fluency in Fr ench. CID at 1-3. The settlement agreement provided that the agency would reconsider its qualification determination, including the language requirement, for the appellant’s application for the vacancy announcement at issue in the appeal s. CID at 2 . The reconsideration would be based on the appellant’s original application package, and a written decision of the reconsideration would be issued to him no later than 10 calendar days after the effective date of the settlement agreement. CID at 2 . The sett lement agreement further provided that, if the reconsideration resulted in a finding that the appellant was qualified for a position under the vacancy announcement, he would receive a one -time priority consideration for the next appropriate vacancy for whi ch he was qualified. CID at 3. ¶3 Pursuant to the settlement agreement, an agency Supervisory Human Resources Specialist reconsidered the appellant’s qualification for the Public 3 Health Advisor position at the GS -13 and the GS -14 levels. CF, Tab 1 at 22-23. By letter dated October 3, 2016, he informed the appellant that he concurred with the agency’s original determination that he was not qualified because his résumé did not demonstrate French fluency in both oral and written communications. Id. The app ellant filed a petition for enforcement with the Board, alleging that the agency had acted in bad faith because his application clearly demonstrated oral and written fluency in French. CF, Tab 1. ¶4 In the compliance initial decision, the administrative judge disagreed with the Supervisory Human Resources Specialist’s determination that the appellant did not demonstrate French fluency in his application, finding instead that the appellant’s résumé demonstrated both written and oral fluency in French. CID at 3-4. The administrative judge rejected the appellant’s contention that the agency acted in bad faith in reviewing the fluency demonstrated in his application, noting that the appellant had not con cisely set forth this information as would normally be expected. CID at 4. However, the administrative judge found that good faith required the agency to engage in a more complete review of the application than it had when it originally found that the ap pellant had not demonstrated the required French fluency. CID at 4 -5. The administrative judge therefore found that the agency had breached the settlement agreement and directed the agency to reconstruct the hiring process by addressing whether the appel lant was otherwise qualified for the position. CID at 5. The administrative judge directed the agency to communicate any other reasons for finding the appellant unqualified to the appellant, so he could elect whether to file a second petition for enforce ment. Id. The administrative judge also strongly suggested that the agency have a subject matter expert review the appellant’s application to determine whether he was otherwise qualified for the position. Id. The matter was then referred to the Board f or consideration. See 5 C.F.R. § 1201.183 . ¶5 The agency submitted a response to the administrative judge’s compliance initial decision on December 14, 2016, indicating that it would rev iew the 4 appellant’s application package, as required by the compliance initial decision. Jones v. Department of Health & Human Services , MSPB Docket No. DE -4324 - 16-0239 -X-1, Compliance Referral File (CRF), Tab 1 at 6. The appellant submitted a “Motion fo r a Deadline for the A gency’s Compliance” on December 19, 2016, requesting that the agency be ordered to comply with the initial decision by December 21, 2016. CRF, Tab 2. ¶6 The agency submitted its statement of compliance on January 13, 2017. CRF, Tab 6 . In that statement, the agency reported that it had assigned a Supervisory Human Resources Specialist and a subject matter expert to review the appellant’s application. Id. at 4-5. The Human Resources Specialist found that the appellant’s application p ackage did not demonstrate the specialized experience required for the Public Health Advis or position at the GS -13 and GS-14 grade levels. Id. at 5. She explained that the appellant’s experience was not directly related to the specialized experience requ ired for the position in the area of public health service. Id. She also found that the specialized experience reported by the appellant that spanned a 30 -year time frame did not show that the work he performed was done in a public health environment or public health program area. Id. ¶7 The agency’s subject matter expert was an individual who had worked as a Public Health Advisor for the past 18 years, and who had served as a subject matter expert for public health positions twice before . Id. The subject matter expert also found the appellant unqualified for the position, stating that his résumé was hard to follow and did not clearly identify his employer, dates of employment, and job -specific experience. Id. at 6. He stated that the work experience the appellant described lacked any link to Public Health Advisor competencies and that the chronological work experience detailed did not certify the necessary years of specialized experience to qualify for the GS -13 or GS -14 levels of the positi on. Id. 5 ¶8 Based on the review of the appellant’s application by these two individuals, the agency asserted that it had complied with the administrative judge’s order to review the appellant’s application for the Public Health Advisor position at the GS-13 and GS -14 levels to determine his qualifications, aside from French fluency. Id. The agency attached declarations from both of the individuals who reviewed the application, setting forth their conclusions. Id. at 12 -23. ¶9 The appellant submitted a stat ement in opposition to the agency’s evidence of compliance, arguing that his veterans’ preference rights were violated in prior cases he brought before the Board and that the agency’s review of his application in the instant case was inadequate. CRF, Tab 8. He also alleged that the agency offered him money to settle his case, requested that the individuals who reviewed his application be removed from their positions, and stated that he wished to be placed in a Public Health Advisor position, be compensate d under the Back Pay Act, and receive compensatory and consequential damages. Id. at 16 -17. ¶10 In response, the agency filed a motion to strike, stating that the appellant had filed 184 cases with the Board since December 2009 and requesting that reference s to previous settlement offers and discussions be stricken and not considered. CRF, Tab 9 at 4 -5. The appellant filed a response to the agency’s motion, arguing that the agency violated the confidentiality of settlement discussions and reiterating his a llegation that the agency violated veterans’ preference regulations. CRF, Tab 10. ¶11 We find that the agency has submitted sufficient evidence to establish its compliance with the terms of the parties’ settlement agreement. As discussed above, the agency produced evidence indicating that it reconstructed the hiring process by having a Human Resources Specialist and a subject matter expert review the appellant’s application package to determine his qualifications for the position at issue. Because the agen cy has now demonstrated compliance, we dismiss the appellant’s motion for a compliance deadline. Any references to previous cases or settlement discussions in prior cases or in the instant case have 6 not been considered in this decision; therefore, the age ncy’s motion to strike the appellant’s references to those cases or discussions is denied as moot. Based on the evidence of compliance submitted by the agency, we find the agency in compliance and dismiss the petition for enforcement. ¶12 This is the final de cision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)). NOTICE OF APP EAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summ ary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which case s fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular foru m is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S . 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. 7 Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition 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 8 representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative recei ves this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepa yment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for revie w to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 9 (3) Judicial review pur suant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited 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 the Federal Circuit 717 Madison Place, N.W. Wash ington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3 The original statutory provision that provided for judicial review of certain whistleblo wer claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 10 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/pro bono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_ Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	JONES_JOHN_PAUL_DE_4324_16_0239_X_1_FINAL_ORDER_1978182.pdf	2022-11-15	null	S	NP
3,932	https://www.mspb.gov/decisions/nonprecedential/GORDON_MARGARET_M_PH_0752_15_0326_I_1_FINAL_ORDER_1978195.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MARGARET M. GORDON, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER PH-0752 -15-0326 -I-1 DATE: November 15, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Margaret M. Gordon , Virginia Beach, Virginia, pro se. Paul V. Usera , Esquire, Bedford, Massachusetts, 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 February 16, 2017 initial decision in this appeal. Initial Appeal File, Tab 55, 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 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 Review (PFR) File, Tab 9. 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 agency on June 4, 2020 , and by the appellant on June 6, 2020. PFR File, Tab 14. The document provides, among other thing s, for the withdrawal of the appeal. Id., ¶ 1(a). ¶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 e ntered 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, befo re 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 We find here that the parties have, in fact, entered into a settlement agreement and that they understand the terms of the agreement, and that they agree that the agreement will not be entered into the record for enforcement by the Board. See PFR File, Tab 14 at 3. As the parties do not intend for the Board to enforce the settlement agreement, we need not address the additional considerations regarding enforcement, and we do not en ter the settlement agreement into the record for enforcement by the Board. ¶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 RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possibl e choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issu ance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is mos t appropriate in any matter. 4 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the follo wing address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. C ourt of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the se rvices 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 affect ed 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 decisi on before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of 5 discrimination based on race, color, religion, sex, national origin, or a disab ling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request r eview by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s O ffice of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decisi on before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 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). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circ uit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation 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 for Merit Systems Protection Board appellants be fore the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites , which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	GORDON_MARGARET_M_PH_0752_15_0326_I_1_FINAL_ORDER_1978195.pdf	2022-11-15	null	PH-0752	NP
3,933	https://www.mspb.gov/decisions/nonprecedential/HOLSTEIN_JAY_E_PH_0752_19_0050_I_1_FINAL_ORDER_1977577.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JAY E. HOLSTEIN, Appellant, v. SOCIAL SECURITY ADMINISTRATION, Agency. DOCKET NUMBER PH-0752 -19-0050 -I-1 DATE: November 14, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jay E. Holstein , Mechanicsburg, Pennsylvania, pro se. Catherine E. Hamilton , Philadelphia, Pennsylvania, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his appeal as withdrawn. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous finding s of material fact; the initial decision is based on an erroneous 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the ini tial 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 diligenc e, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 The appellant was employed by the agency as an Attorney in the agency’s Office of Hearing Operations (OHO). Initial Appeal File (IAF) , Tab 1 at 1, Tab 4 at 18. On November 6, 2018, the appellant filed this appeal, and he made the following allegations: (1) he was constructively terminated ; (2) he was a “100% [] service -connected disabled veteran” with “serio us health issues”; (3) the agency subjected him to a hostile work environment ; (4) his supervisor was late in approving his request for leave under the Family and Medical Leave Act of 1993 (FMLA) ; and (5) she only approved his FMLA leave after he had filed an equal employm ent opportunity (EEO) complaint.2 IAF, Tab 1 at 3, 5. 2 The chronology regarding the appellant’s constructive termination claim is confusing. For example, in his November 6, 2018 initial appeal paperwork, the appellant stated that his constructive term ination occurred 4 days later, on November 10, 2018. IAF, Tab 1 at 3. After he filed this appeal, he informed the agency that he had instead decided to retire , and he requested and was granted leave without pay/FMLA leave beginning on November 13, 2018 . IAF, Tab 4 at 19, 21. The agency includes an affidavit on review indicating that the appellant continued to work at the agency until January 5, 2019 . Petition for Review File, Tab 3 at 13-14. 3 ¶3 The administrative judge ordered the appellant to show cause why his appeal should not be dismi ssed for lack of jurisdiction. IAF, Tab 5. The appellant’ s timely December 4, 2018 re sponse contained one sentence: “I wish to withdraw my complaint that [was] filed concerning Social Security OHO.” IAF, Tab 6 at 3. The administrative judge thereafter dismissed the appeal as withdrawn. IAF, Tab 7, Initial Decision . ¶4 The appellant timely filed a petition for review, indicating that he withdrew his appeal because he never received a n agency response to his December 2018 emails regarding his return to work following his FMLA leave or to his November 27, 2018 email regard ing his desire to settle his EEO complaint, which aggravated his depression and prevented him from going forward with his appeal. Petition for Review ( PFR ) File, Tab 1 at 3 -4. The appellant requests that the Board address his constructive termination. Id. at 5. The agency has filed a response. PFR File, Tab 3. DISCUSSION OF ARGUME NTS ON REVIEW ¶5 Ordinarily, an appellant’s withdrawal of an appeal is an act of finality, and in the absence of unusual circumstances such as misinformation or new and materia l evidence, the Board will not reinstate an appeal once it has been withdrawn merely because the appellant wishes to proceed before the Board. Cason v. Department of the Army , 118 M.S.P.R. 58 , ¶ 5 (2012). However, a relinquishment of one’s right to appeal to the Board must be by clear, unequivocal, and decisive action. Id. ¶6 In his petition for review, the appellant does not argue that he withdrew his appeal due to misinformation, nor does he request that his appeal be reopened due to new and material evidence. PFR File, Tab 1. He instead only asserts that he withdrew his appeal because the agency’s failure to respond to his late November 2018 and early December 2018 emails exacerbated his depression. Id. at 3-4. 4 ¶7 The Board may relieve an appellant of the consequences of his decision to withdraw his appeal when he shows that the withdrawal was involuntary because of mental distress . Auyong v. Department of the Navy , 97 M.S.P.R. 267 , ¶ 4 (2004). In determining if reinstatement of the appeal is w arranted , the Board considers whether the appellant was represented below, has demonstrated that he was mentally impaired at the time, and has otherwise shown that he was unable to understand fully the nature of the action in question or to assist his repr esentative in regard to the appeal. Id. In Auyong , the appellant submitted his own declaration in support of his claim that his withdrawal was due to mental illness (depression and psychosis) along with a report from his psychologist who opined that, but for his depression and some other extenuating circumstances, the appellant would not have withdrawn his appeal. Id., ¶¶ 5 -6. The Board found that although the appellant’s evidence established that he suffered from a mental illness, he nevertheless faile d to show that he was unable to understand fully the nature of the action in question and it therefore denied his request to reinstate his appeal. Id., ¶¶ 7, 9. ¶8 Here, althou gh the appellant was pro se, he is himself an attorney. IAF, Tab 1 at 3. We have considered whether the appellant had a mental impairment at the time he withdrew his appeal. In his initial appeal, the appellant stated that he was a “100% [] service -connected disabled veteran” with “serious health issues.” Id. at 5. The agenc y certified that on October 30, 2018, the appellant made an informal complaint of discrimination based on his age and an unspecified mental disability regarding the agency’s decision not to respond to his FMLA request . IAF, Tab 4 at 17. According to emai ls between the appellant and the agency, the appellant was on leave without pay/FMLA leave from November 13 to December 10, 2018, which coincided with his request to withdraw his appeal. Id. at 19-29. Other than his depression, PFR File, Tab 1 at 4, the appellant has identified no other medical conditions. 5 ¶9 Even if we consider the appellant’s depression as a mental impairment during this time frame, he has failed to provide any medical documentation in support of his contention, or any explanation as to ho w his depression affected his ability to understand fully the nature of the action in question. Accordingly, we find that the record does not warrant relieving the appellant of the consequences of his decision to withdraw the appeal, and we deny his reque st to reinstate his appeal. Because we affirm the administrative judge’s decision to dismiss the appeal as withdrawn, we need not address the merits of his constructive termination claim .3 NOTICE OF APPEAL RIG HTS4 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 your situation and the rights des cribed below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 3 The appellant previously appealed an alleged involuntary resignation from a different agency , which an administrative judge dismissed for lack of jurisdiction. Holstein v. Department of Veterans Affairs , MSPB Docket No. PH -0752 -17-0210 -I-1, Initial Decision (June 19, 2017). The appellant has filed a petition f or review of that initial decision, and the Board will address the arguments raised therein in a separate order. 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions . As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 6 Please read carefully each of the three main possible choices of review below to decide which one a pplies to 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 seeki ng judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to 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 7 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 discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opport unity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must fil e with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 8 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commiss ion 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures unde r 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial p etition for review “raises no challenge to the Board’s disposition of allegations of a prohibited 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 fil e a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this de cision. 5 U.S.C. § 7703 (b)(1)(B). 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction ex pired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 9 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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 of Appeals 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	HOLSTEIN_JAY_E_PH_0752_19_0050_I_1_FINAL_ORDER_1977577.pdf	2022-11-14	null	PH-0752	NP
3,934	https://www.mspb.gov/decisions/nonprecedential/GRAY_DAMIEN_LORELL_DC_3330_16_0148_I_1_FINAL_ORDER_1977657.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DAMIEN LORELL GRAY, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER DC-3330 -16-0148 -I-1 DATE: November 14, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Damien Lorell Gray , North Chesterfield, Virginia, pro se. Timothy O ’Boyle , Hampton, Virginia, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL OR DER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his Veterans Employment Opportunities Act of 1998 (VEOA) appeal. Generally, we grant petitions such as this one only when: the initial decision contains erroneous findings of material fact; the initial decision is based on an 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due d iligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for gra nting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 The appellant, a 30% disabled veteran, filed an appeal in which he alleged that the agency’s Richmond , Virginia Medic al Center had violated his veterans’ preference rights by failing to select him for 15 positions for which he had applied . Initial Appeal File (IAF), Tab 1 at 10 -11. With his appeal, he submitted a letter from the Office of the Assistant Secretary for Ve terans’ Employment and Training at the Department of Labor (DOL) stating that it had closed its investigation into the appellant’s complaint and affording him appeal rights to the Board. Id. at 7. The appellant re quested a hearing before the Board. Id. at 2. In response to the administrative judge’s jurisdictional order, IAF, Tab 2, the appellant provided additional information regarding the positions and his st atus as a preference eligible, IAF, Tab 3 at 4 -7. The agency moved that the appeal be dismis sed for lack of jurisdiction and/or because the appellant’s claims had already been adjudicated in a prior appeal. IAF, Tab 6. ¶3 The administrative judge issued an initial decision on the written record. IAF, Tab 16, Initial Decision (ID). She first found that the appellant’s nonselections for at least 10 of the 15 positions were the subject of another Board appeal and thus could not be relitigated under the d octrine of res judicata. ID 3 at 2. As to the remaining five positions , the administrative judge found that the appellant did not identify the positions or the vacancy announcements to which he was referring and that, because he had failed to provide such information, he had not established the Board’s jurisdiction as to tho se positions. ID at 2 -3. In addition, the administrative judge found that the appellant failed to explain how his right to compete was denied as to these positions and therefore had not stated a claim upon which relief could be granted. ID at 3. ¶4 The app ellant has filed a petition for review , Petition for Review (PFR) File, Tab 1, to which the agenc y has responded in opposition, PFR File, Tab 3. ¶5 On review , the appellant asserts that his first VEOA appeal did not address the same positions as those raised in the instant appeal. PFR File, Tab 1 at 4 -5. The administrative judge in that earlier case found that the appellant had established the Board’s jurisdiction over his appeal, Gray v. Department of Veterans Affairs , MSPB Docket No. DC -3330 -15-0964 -I-1, I nitial Decision (Sept. 16, 2015) ,2 but denied corrective action because the appellant did not show that he filed his claim with DOL within the 60 -day statutory time deadline and failed to provide any explanation or evidence to show circumstances that would justify waiving the deadline. An examination of the initial decision in that earlier VEOA appeal does not, in fact, include a list of the positions to which it applies. However, with its response to the appellant’s appeal in the instant case, the agency submitted not only a copy of the initial decision in his first VEOA appeal, but also documents from the record in that appeal, including a narrative in which the appellant listed the position numbers of the jobs for which he unsuccessfully applied and whi ch were therefore at issue in that first appeal. IAF, Tab 5 at 45. Contrary to the appellant’s assertion, 10 of those positions are the same as 10 of the positions and vacancy announcements at issue in the instant appeal. Compare id., with IAF, Tab 3 at 5-6. Therefore , the doctrine of res judicata applies to 2 That initial decision became a final decision of the Board on October 21, 2015 , when neither party filed a petition for review. 4 preclude relitigation of the appellant’s claims regarding those 10 positions. Peartree v. U.S. Postal Service , 66 M.S.P.R. 332 , 337 (1995) ( finding that res judicata, or issue preclusion, precludes parties from relitigating issues that were, or could have been, raised in a prior action, and is applicable if (1) the prior judgment was rendered by a forum with competent jurisdiction; (2) the prior judgment was a final judgment on the merits; and (3) the same cause of action and the same parties or their privies were involved in both cases ). As such, the appellant ’s claims on review regarding his qualifications for these positions, PFR File, Tab 1 at 6, 8, may not be considered again .3 ¶6 The appellant argue s on review that he was denied a hearing. Id. The Board may decide a VEOA appeal on the merits without a hearing when there is no genuine dispute of material fact and one party must prevail as a matter of law. Davis v. Department of Defense , 105 M.S.P.R. 604 , ¶ 12 (2007). The appellant has not shown that the administrative judge abused her discretion in not convening a hearing in this case. ¶7 Finally, w ith his petition, the appellant has submitted what he describes as two pages of “data compiled from Department of Labor Vets investigation.” PFR File, Tab 1 at 14 -15. These documents were par t of the record below, IAF, Tab 11 at 7 -8, and they are therefore not new evidence . Meier v. Department of the In terior , 3 M.S.P.R. 247 , 256 (1980). 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). 3 The appellant has not challenged with any specificity the administrative judge’s findings regarding the remaining five positions. 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 5 Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described b elow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies t o your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judic ial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “G uide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 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 war rants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to t he Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. distri ct court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition , you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the 7 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your rep resentative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EE OC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2 302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your pe tition for 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of compete nt jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on 8 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Cir cuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants b efore the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 9 Contact information for the courts of appeals can be found at their respective websi tes, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	GRAY_DAMIEN_LORELL_DC_3330_16_0148_I_1_FINAL_ORDER_1977657.pdf	2022-11-14	null	DC-3330	NP
3,935	https://www.mspb.gov/decisions/nonprecedential/HOLSTEIN_JAY_E_PH_0752_17_0210_I_1_FINAL_ORDER_1977663.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JAY E. HOLSTEIN, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER PH-0752 -17-0210 -I-1 DATE: November 14, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jim Kutz , Esquire, Harrisburg, Pennsylvania, for the appellant. Lauren Russo , Esquire, Philadelphia, Pennsylvania, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his appeal of his alleged ly involuntary resignation for lack of jurisdiction without holding the requested hearing. Generally, we grant petitions such as this one only in the following circumstances: the in itial decision contains 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during e ither the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available th at, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 On review, t he appellant seems to request that the Board consider the agency’s alleged actions from his perspective —as a disabled veteran with anxiety . Initial Appeal File (IAF), Tab 3 at 3; Petition for Review (PFR) File, Tab 1 at 4-5; see Baker v. U.S. Postal Service , 84 M.S.P.R. 119 , ¶ 15 (1999) (finding that the relevant issue is whether a reasonable person with the employee’s specific physical or mental condition would have felt forced to retire). He failed, however, to detail the extent of hi s medical conditions, specify how they impaired his decision -making abilities, or explain how they would have caused a reasonable person with such conditions to perceive the agency’s actions as so coercive or improper that the person would have had no real istic alternative but to resign.2 See Baker , 84 M.S.P.R. 119 , ¶ 22. Nevertheless, after taking the appellant’s asserted medical conditions into consideration, we find that he failed 2 The record reflects that the appellant did not resign from the Federal service but instead accepted a transfer. IAF, Tab 9 at 40 -41. However, because the appellant asserts that he was coerced int o resigning, and a coerced transfer is analogous to a coerced resignation, we refer to the appellant’s departure from the agency as a resignation. IAF, Tab 3 at 3; see Colburn v. Department of Justice , 80 M.S.P.R. 257 , ¶ 6 (1998) . 3 to nonfrivolously allege working conditions so intolerable that a reasonable person in his position would have felt compelled to resign. IAF, Tab 1 at 6, 10-12, Tab 3 at 3; see Brown v. U.S. Postal Se rvice , 115 M.S.P.R. 609 , ¶¶ 13, 15, aff’d , 469 F. App’x 852 (Fed. Cir. 2011) .3 ¶3 The appellant argues that the administrative judg e demonstrated his bias and abused his discretion by granting the agency’s request for additional time to file its response to his initial appeal . PFR File, Tab 1 at 3. In making a claim of bias or prejudice against an administrative judge, a party must overcome the presumption of honesty and integrity that accompanies administrative adjudicators. Walker -King v. Department of Veterans Affairs , 119 M.S.P.R. 414 , ¶ 14 (2013). An administrative judge’s conduct during the course of a Board proceeding warrants a new adjudicat ion only if his comments or actions evidence a deep -seated favoritism or antagonism that would make fair judgment impossible. Id. The appellant makes no such showing here , and we find that the administrative judge’s actions do not evidence favoritism or antagonism . ¶4 Additionally, an administrative judge’s rulings on motions generally will be reversed only upon a showing that the ruling was inconsistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case. 5 C.F.R. § 1201.115 (c). Administrative judges have substantial discretion to rule on motions, and a request for an extension of time may be granted upon a showing of good cause —an elastic concept that rests upon principles of equity and justice . Owens v. Department of Homeland Security , 97 M.S.P.R. 629 , ¶ 6 (2004). The appellant’s conclusory allegation that the agency missed its fili ng deadline due to incompetence does not establish that the administrative judge abused his discretion or evidenced bias in granting the agency’s request. PFR File, Tab 1 at 3. Nor does the appellant assert how he was 3 A nonfrivolous allegation in the context of this appeal is an allegation of fact that, if proven, could establish that the agency coerced the appellan t’s resignation . See Brown , 115 M.S.P.R. 6 09, ¶ 11; 5 C.F.R. § 1201.4 (s). 4 prejudiced by the administrative judge’s ruling. Indeed, in light of the appellant’s failure to make a nonfrivolous allegation of Board jurisdiction, the a gency’s submission was largely immaterial to the disposition of this case. Similarly, the appellant’s conclusory assertion that the administrative judge displayed unpreparedness does not establis h that he abused his discretion or that the appellant was pr ejudiced. Id. ¶5 Finally, the appellant also alleges that the agency failed to sufficiently investigate his complaint of discrimination. Id. at 3-5. The Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, ru le, or regulation. Winns v. U.S. Postal Service , 124 M.S.P.R. 113 , ¶ 7 (2017) , aff’d sub nom. Williams v. Merit Systems Protection Board , 892 F.3d 1156 (Fed. Cir. 2018) . It is apparent that the Board has no jurisdiction to adjudicate the appellant’s allegation regarding the agency’s investigation.4 See 5 C.F.R. § 1201.3 . For the reasons set forth above, we affirm the initial decision and dismiss the appeal for lack of jurisdiction. NOTICE OF APPEAL RIG HTS5 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of 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 4 In determining the voluntariness of a resignation, the Board will consider whether an agency inequitably handled an appellant’ s discrimination complaint. Axsom v. Department of Veterans Affairs , 110 M.S.P.R. 605 , ¶ 17 (2009). Here, however, the appellant filed his complaint after resigning . IAF, Tab 1 at 9 , 13, Tab 9 at 40. Accordingly, the agency’s all eged inequita ble handling of his complaint could not have been a factor in his decision to resign . 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 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 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible ch oices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in gene ral. As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of par ticular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation 6 for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the servic es provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected b y an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil act ion with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and 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 a t 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 7 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EE OC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.6 The court of appeals must receive your 6 The 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 Ci rcuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit i s available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested i n securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websit es, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	HOLSTEIN_JAY_E_PH_0752_17_0210_I_1_FINAL_ORDER_1977663.pdf	2022-11-14	null	PH-0752	NP
3,936	https://www.mspb.gov/decisions/nonprecedential/WADHWA_DOM_PH_1221_19_0193_W_3_FINAL_ORDER_1977692.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DOM WADHWA,1 Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER S PH-1221 -19-0193 -W-3 PH-1221 -16-0001 -W-2 PH-1221 -18-0293 -W-1 PH-1221 -18-0328 -W-1 PH-1221 -18-0473 -W-1 PH-1221 -19-0068 -W-3 PH-1221 -19-0138 -W-1 PH-3443 -19-0363 -I-1 DATE: November 14, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL2 Kevin I. Lovitz , Esquire and Dennis L. Friedman , Esquire, Philadelphia, Pennsylvania, for the appellant. Marcus S. Graham , Esquire and James C. Sinwell , Pittsburgh, Pennsylvania, for the agency. Lauren Russo , Esquire, Philadelphia, Pennsylvania, for the agency. 1 Pursuant to 5 C.F.R. § 1201.35 (a) and the settlement agreement discussed in this Order, the Board substitutes Jennifer Hoffman, Executrix of the Estate of Dom Wadhwa, for the appellant. Ms. Hoffman wi ll be served with a copy of this decision via U.S. mail. 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 Bo ard’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 appellant petition ed for review of the initial decision s in each of these eight appeal s. We now JOIN these appeals for processing3 and, for the reasons set forth below, we DISMISS the appeals as settled. ¶2 The appellant passed away at some point “during the pendency” of the petitions for review. Petition for Review (PFR) File, Tab 5 at 5. He apparently had various actions pending in judicial and other administrative forums as well , and the executrix of his estate entered into a global settlement agreement settling all of his claims. The settlement agreement was reached in Wadhwa v. Secretary, Dep’t of Veterans Affairs , E.D. Pa. No. 17 -cv-2426 . PFR File, Tab 5. On May 20, 2022, the district court dismisse d the appellant’s judicial appeals in that court . Wadhwa v. Secretary, Dep’t of Veterans Affairs , E.D. Pa. , No. 17 -cv- 2426 , Order, Docket Entry No. 46 (order dismissing action with prejudice) ; see also PFR File, Tab 5 at 4 (noting consolidation of judicia l appeals under No. 17-cv-2426 ). ¶3 On March 8, 2022, the agency submitted the global settlement agreement in MSPB Docket No. PH -1221 -19-0193 -W-3, and the same day or shortly thereafter also submitted it in three of his other seven pending cases: MSPB Docket Nos. PH-1221 -16-0001 -W-2, PH -1221 -19-0068 -W-3, and PH -3443 -19-0363 -I-1. E.g., PFR File, Tab 5. 3 Except where otherwise noted, citations herein will be to the lead case, MSPB Docket No. PH -1221 -19-0193 -W-3. 3 ¶4 The settlement agreement was signed and dated by the Executrix of the Estate of Dr. Dom Wadhwa on March 4, 2022, and by the Assistant United States Attorney as representative for the agency on March 8, 2022. PFR File, Tab 5. The agreement provides, in relevant part , for the dismissal of all pending appeals brought by the appellant, whether or not specifically listed by docket number in the agreement . Id., at 4-5, 6-7. ¶5 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 enforc ement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146, 149 (1988). In addition, before accepting a settlement agreeme nt 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). ¶6 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 enforcemen t by the Boa rd. See PFR File, Tab 5 at 9 ( referring to determinations by “any court” and providing that “contract law” would govern any dispute) . Accordingly, we find that dismissing the appeal s with prejudice to refiling (i.e., the par ties normally may not refile these appeal s) is appropriate under these circumstances. As the parties do not intend for the Board to enforce the terms of the settlement agreement, we do not enter the settlement agreement into the record for enforcement. 4 ¶7 This is the final decision of the Merit Systems Protection Board in th ese appeal s. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R. § 1201.113 ). NOTICE OF APPEA L RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum wi th 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 l aw applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main 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). 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 5 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies t o you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposit ion of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and y our representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of 6 discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsite s.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You mu st file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 addres sed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 7 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in s ection 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 Fed eral Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are 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 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 201 8, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 8 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	WADHWA_DOM_PH_1221_19_0193_W_3_FINAL_ORDER_1977692.pdf	2022-11-14	null	S	NP
3,937	https://www.mspb.gov/decisions/nonprecedential/CONDE_CONSUELO_DC_0752_15_1059_I_1_FINAL_ORDER_1977038.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CONSUELO CONDE, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER DC-0752 -15-1059 -I-1 DATE: November 10, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Alan L. Lescht , Esquire, Washington, D.C., for the appellant. Edith Moore McGee , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sustained her removal . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of mate rial fact; the initial decision is based on an erroneous interpretation of statute 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review . Except as expressly MODIFIED by this Final Order to clarify the legal standards applicable to the appellant ’s affirmative defense of equal employment opportunity (EEO) reprisal , we AFFIRM the initial decision. ¶2 The appellant held a GS-13 Electrical Engineer position . Initial Appeal File (IAF), Tab 32, Initial Decision (ID) at 2. In June 2015, the ag ency proposed her removal for (1) failure to follow instructions by sending emails; (2) failure to follow instructions regarding telephone calls to and from customers; (3) failure to follow instructions by making unprofessional comments; (4) failure to fol low instructions by including her phone number in correspondence; and (5) failure to follow policy. ID at 2; IAF, Tab 5 at 59 -64. In July 2015, the deciding official sustained each of the charges and the removal. ID at 2; IAF, Tab 5 at 24-32. The insta nt appeal followed. IAF, Tab 1. ¶3 Because the appellant waived her right to a hearing, the administrative judge issued a decision based on the written record. ID at 1; IAF, Tab 22 at 1. Relying largely on the appellant’s admissions, he first found that th e agency met its burden of proving at least some of the specifications underlying charges 1, 2, 4, and 5. ID at 2 -14. Next, he denied each of the appellant’s affirmative defenses, which included allegations of a due process violation, EEO reprisal, and discrimina tion on the base s of race, national origin, sex, and age. ID at 14 -28. 3 Lastly, the administrative judge found that the agency established nexus and removal was an appropriate penalty for the sustained charges and specifications. ID at 28 -31. T he appellant has filed a petition for review, with arguments limited to the alleged due process violation and EEO reprisal. Petition for Review (PFR) File, Tab 5. The agency has filed a response. PFR File, Tab 7. The administrative judge properly denied the appellant’s due process claim. ¶4 Due process under the Consti tution requires that a tenured F ederal employee be provided “written notice of the charges against [her], an explanation of the employer’s evidence, and an opportunity to present [her] side of the story.” Cleveland Board of Education v. Loudermill , 470 U.S. 532 , 546 (1985). The Court has described “the root requirement” of the Due Pr ocess Clause as being “that an individual be given an opportunity for a hearing before [s]he is deprived of any significant property interest.” Id. at 542. This requires a “meaningful opportunity to invoke the discretion of the decision maker” before the personnel action is effected. Id. at 543. “The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement.” Id. at 546. An employee cannot be said to have had a mean ingful opportunity to present her side of the story and invoke the deciding official ’s discretion if the deciding official did not hear the employee’s reply to the proposal notice before issuing his decision. Id. at 543 . ¶5 The appellant’s due process claim is based on argument and evidence that, on the day of the proposed removal, the deciding official spoke to a former coworker of the appellant’s, indicating that the agency already had terminated the appellant. E.g., IAF, Tab 31 at 14 -19, 44 -47. According to the appellant, that conversation demonstrates that her subsequent response to the proposed removal was meaningless, rather than meaningful. Id. at 16. The agency presented argument and evidence disputing the nature of the aforementioned conversation and due process claim, generally. E.g., IAF, Tab 24 at 5 -6, Tab 27 at 5 -6. The administrative judge considered the conflicting statements about the matter, 4 including those from the deciding official and the third party coworker, but found the former more credible. ID at 20 -21. Therefore, the administrative judge concluded that the appellant failed to prove the existence of a due process violation. On review, the appellant disputes the administrative judge’s cre dibility findings. PFR File, Tab 5 at 7 -13. ¶6 To resolve credibility issues, an administrative judge must identify the factual questions in dispute, summarize the evidence on each disputed question, state which version he believes, and explain in detail w hy he found the chosen version more credible, considering such factors as: (1) the witness’s opportunity and capacity to observe the event or act in question; (2) the witness’s character; (3) any prior inconsistent statement by the witness; (4) a witness’ s bias, or lack of bias; (5) the contradiction of the witness’s version of events by other evidence or its consistency with other evidence; (6) the inherent improbability of the witness’s version of events; and (7) the witness’s demeanor. Hillen v. Depart ment of the Army , 35 M.S.P.R. 453 , 458 (1987). In a situation like this, where there has been no hearing and the administrative judge’ s findings are therefore not based on observing witnesses’ demeanor, the Board is free to reweigh the evidence and substitute its own judgment on credibility issues. Haebe v. Department of Justice , 288 F.3d 1288 , 1302 (Fed. Cir. 2002). Nevertheless, we find no basis to reach a conclusion different than the administrative judge ’s. ¶7 According to a sworn statement from the deciding official, he spok e with three individuals on June 10, 2015, the day he received the proposed removal. IAF, Tab 24 at 5 -6. Those individuals included his Human Resources point of contact, the appellant’s former Engineering Division Chief, and a former subordinate of the d eciding official who was also a friend of the appellant’s. Id. The deciding official indicated that his Human Resources point of contact explained the process to follow, as well as the deciding official’s responsibilities, including those related to the appellant’s due process rights. Id. at 5. A sworn 5 statement from that Human Resources official reflects similarly. IAF, Tab 25 at 6. The deciding official reported speaking to the other two individuals because he anticipated that the appellant would se ek their counsel on the proposed removal due to the fact that she had done so during a recent suspension. IAF, Tab 24 at 5. The deciding official characterized both calls as merely informing them of the process that would follow, including his waiting fo r the appellant’s response before issuing a decision on the matter. Id. The first individual submitted a sworn statement concerning his call with the deciding official, describing their conversation similarly, including the reason for the call. IAF, Tab 27 at 5 -6. According to that former Engineering Division Chief, he specifically remembered asking if the appellant was fired, and the deciding official responding in the negative, instead indicating that the appellant was being given the opportunity to p resent her case. Id. Conversely, the other individual submitted a sworn statement concerning his call with the deciding official, describing a different conversation. IAF, Tab 31 at 45. According to that former subordinate of the deciding official and friend of the appellant, the deciding official called him, indicating that the appellant had been terminated earlier that day. Id. ¶8 The administrative judge recognized the conflict between the deciding official’s statement and that of his former subordinat e, but credited the former on the basis that it was consistent with the statements of the others who had similar conversations. ID at 20 -21. The appellant argues that this credibility analysis was inadequate because it did not specifically discuss other factors such as the likely motivations of the relevant parties, or the improbability of the deciding official’s explanation. PFR File, Tab 5 at 7 -13. Although we have considered the appellant’s arguments, we find no basis for reaching a different conclus ion. While it is possible that the deciding official may have had a motive to be less than truthful because he is an interested party, as alleged, the motivations of the individual providing a different account could be similarly impugned because of 6 his f riendship with the appellant and his prior conflicts with the deciding official. IAF, Tab 24 at 6-7. In addition, while the appellant asserts that the deciding official’s explanation appears highly improbable, we find it more improbable that he would spe cifically discuss the fact that the proposed removal was pending and not yet decided with the Human Resources official and the former Engineering Division Chief, as evidenced by their sworn statements, but then characterize the appellant as already having been terminated during a conversation with the appel lant’s friend on the same day. Accordingly, we agree with the administrative judge’s credibility findings and denial of the due process claim. We modify the initial decision to incorporate the proper sta ndard for assessing the appellant’s EEO reprisal affirmative defense . ¶9 It appears that, in adjudicating the appellant’s claim of EEO reprisal , the administrative judge applied something of a hybrid between the four “tests” set forth in Warren v . Department of the Army , 804 F.2d 654 , 656 (Fed. Cir. 1986) , and the standard s of proof and evidentiary framework set forth in Savage v. Department of the Ar my, 122 M.S.P.R. 612 , ¶¶ 38-51 (2015) , overruled in part by Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶¶ 23 -25. ID at 21-25. He found that the record included sufficient evidence to establish that the appellant had participated in the EEO process and that the deciding official was aware of her complaint, but insufficient evidence that her EEO activity contributed to her removal. I D at 24-25. According to the administrative judge, the appellant failed to establish a “genuine nexus” between her protected EEO activity and her removal for misconduct, which he characterized as overt, intentional, and confrontational. Id. The appellan t has reasserted this affirmative defense on review. PFR File, Tab 5 at 14 -18. ¶10 We modify the initial decision to apply the correct standard and methods of proof for an affirmative defense of retaliation for Title VII EEO activity, as set forth in Pridgen , 2022 MSPB 31, ¶¶ 20-24, 29. Specifically, an appellant may prove such a defense by showing that her protected activit y was a motivating 7 factor, i.e. , played any part in the agency’s action or decision. Pridgen , 2022 MSPB 31, ¶ 21. But for the appellant to obtain full status quo ante relief on her claim, including reinstatement, back pay, and damages, her protected activity must be a but -for cause of the action or decision. Id. The appellant may meet this burden by submitting any combination of direct or indirect evidence, including evidence of pretext, comparator evidence, and evidence of suspicious timing or other actions or statements that, taken alone or together, could raise an inference of retaliation. Id., ¶ 22. ¶11 In this case, the appellant alleges that EEO reprisal is evidenced by her history of laudable performance and the suspicious timing between her EEO activity and several subsequent disciplinary measures, including her removal. E.g., IAF, Tab 17 at 6-13; PFR File, Tab 5 at 1 4-18. We disagree. The record shows that the appellant initiated her EEO activities in July 2014. E.g., IAF, Tab 17 at 6, 44 -51. It also shows that the agency’s series of disciplinary measures began even earlier, including counseling2 and a 7 -day suspe nsion that predate the appellant’s EEO activity. IAF, Tab 5 at 25 -26, Tab 17 at 45, 54, 104. Accordingly, the timing does not appear as suspicious as alleged. Because the appellant failed to present evidence that would tend to raise an inference of retaliation or suggest that the removal action was pretextual, we find that she has failed to show that her EEO activity was a motivating factor in her removal . ¶12 Accordingly, we deny the appellant’s petition for review. NOTICE OF APPEAL RIG HTS3 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain 2 The appellant indicated that she was reprimanded, but the agency described the matter as counseling. IAF, Tab 17 at 45, 54 . 3 Since the issuance of the initial decision in this matter, the Board has updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 8 review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking 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 9 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 resp ective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 10 Alternatively, you may request review by the Equal Employm ent Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operation s within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Op portunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunit y Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review 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 11 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 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 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. 12 Contact information for the courts of appeals can be found a t their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	CONDE_CONSUELO_DC_0752_15_1059_I_1_FINAL_ORDER_1977038.pdf	2022-11-10	null	DC-0752	NP
3,938	https://www.mspb.gov/decisions/nonprecedential/FRAIRE_STILL_MARIA_C_DA_0731_17_0356_I_1_FINAL_ORDER_1977114.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MARIA C. FRAIRE -STILL, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER DA-0731 -17-0356 -I-1 DATE: November 10, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Maria C. Fraire -Still, El Paso, Texas, pro se. Darlene M. Carr , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appe llant has filed a petition for review of the initial decision, which dismissed her appeal of a negative suitability action as untimely filed without good cause shown . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings durin g either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review . Except as expressly MODIFIE D by this Final Order to correct the length of the appellant’s filing delay, we AFFIRM the initial decision, which is now the Boar d’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 The Office of P ersonnel Management (OPM) ordered the Department of the Army to remove the appellant on November 1, 2016, based on OPM’s negative suitability determination. Initial Appeal File (IAF), Tab 2 at 2. The appellant received notice of her removal and of her ri ght to file an appeal with the Board no later than November 16, 2016, but she did not file her appeal until June 2, 2017. IAF, Tab 1, Tab 2 at 2 -5, Tab 5 at 1. The administrative judge issued an initial decision that dismissed the appeal as untimely file d by 199 days. IAF , Tab 7, Initial Decision (ID) at 1-7. The administrative judge calculated the 199-day filing delay from November 16, 2016, ID at 3, but the appellant had 30 days from her receipt of the notice of removal , until December 16, 2016, to file her appeal timely , see 5 C.F.R. § 1201.22 (b)(1) . Thus, we modify the initial decision to find that the appellant’s June 2, 2017 appeal was untimely filed by 168 days . ¶3 On review, the appellant does not dispute that her initial appeal was untimely filed , but she reass erts that good cause existed to excuse the delay . Petition for Review File, Tab 3 at 2 -3. We have considered the appellant’s 3 arguments and that the length of the filing d elay was 168 days , rather than 199 days , but we find that she has not set forth a basis to disturb the administrative judge’s well -reasoned findings that she failed t o demonstrate good cause to excuse her untimely appeal. We further find that the appellan t’s assertion that the administrative judge mischaracterized how she obtained the extension of ti me to respond to OPM’s notice of proposed removal does not provide a basis to modify the initial decision. The administrative judge’s explanation for the exte nsion of time to respond to OPM , although imprecise, was immaterial to his finding that the appell ant failed to demonstrate good cause to excuse her untimely appeal to the Board . An adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision . Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984). NOTICE OF APPEAL RIG HTS2 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your sit uation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise w hich option is most appropriate in any matter. 4 within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review belo w to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general r ule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. 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. distri ct 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 th e EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives t his decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 Fed eral Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Ope rations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in se ction 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 If you submit a petition for judicial review to the U.S. Court of Appeals for the Feder al Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circ uit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interes ted in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appell ants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective w ebsites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	FRAIRE_STILL_MARIA_C_DA_0731_17_0356_I_1_FINAL_ORDER_1977114.pdf	2022-11-10	null	DA-0731	NP
3,939	https://www.mspb.gov/decisions/nonprecedential/HARPER_KENNETH_DE_3330_17_0365_I_1_FINAL_ORDER_1977118.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD KENNETH HARPER, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER DE-3330 -17-0365 -I-1 DATE: November 10, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Kenneth Harper , Pueblo, Colorado, pro se. Trina C. Hopkins , Esquire, and Melody VanDyne , Fort Carson, Colorado, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his nonselection appeal under the Veterans Employment Opportunities Act of 1998 (VEOA) for lack of jurisdiction. On petition for review, the appellant argues that he filed a VEOA complaint with the Department of Labor 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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 (DOL) and its lack of response constitutes exhaustion of his administrative remedy. 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 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 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 he filed a complaint with DOL and did not receive a response , and thus he exhausted his remedy with DOL. Petition for Review (PFR) File, Tab 1 at 5.2 However, while 60 days have now elapsed since 2 The cases that contemplate such a scenario are distinguishable from the instant facts because here there is no allegation that DOL affirmatively took action to ad vise the appellant that DOL did not have jurisdiction over his complaint, directed him to file his appeal directly with the Board, or refused to address his complaint due to a separate pending Board appeal. See Morris v. Department of the Army , 113 M.S.P.R. 304 , ¶ 10 (2010) (finding the appellant exhausted the DOL complaint process when DOL refused to address his VEOA complaint and a dvised h im that the complaint did not fall within its jurisdiction); Thompson v. Department of the Army , 112 M.S.P.R. 153 , ¶ 14 (2009) (noting that if the appellant had attempted to file a VEOA complaint with DOL and had been told DOL did not handle such complaints and directed the appellant to file his VEOA complaint directly to the Board, the Board may find the appellant had sati sfied the DOL exhaustion requirement); Alegre v. Department of the Navy , 118 M.S.P.R. 424 , ¶ 14 (2012) (finding the appellant satisfi ed the DOL exhaustion requirement when she presented evidence that DOL refused to address her VEOA complaint due to a separate pending Board appeal). Here, the appellant instead asserts that DOL never responded to his VEOA complaint. PFR File, Tab 1 at 5 . 3 the appellant’s July 12, 2017 submission to DOL , the appellant has not alleged that he provided written notification to the Secretary of Labor of his intent to file a Board appeal nor does he submit evidence of such notification. ¶3 Thus, the appellant’s assertion that DOL failed to respond to his complaint is insufficient to establish that he has provided written notification to the Secretary of his intent to bring a Board appeal as required. See 5 U.S.C. § 3330a (d)(2) -(3); Styslinger v. Department of the Army , 105 M.S.P.R. 223 , ¶ 15 (2007) (noting that a complainant’s notification to DOL of his intent to file a Board appeal serves as a means of notifying the Secretary that DOL should cease any further effort to investigate or resolve his complaint) , overruled on other grounds by Oram v. Department of the Navy , 2022 MSPB 30 , ¶ 18 . Because the appellant has not shown that he exhausted his administrative remedies with DOL under 5 U.S.C. § 3330a (d)(2), he has not established Board jurisdiction over his VEOA appeal. Cf. Becker v. Departm ent of Veterans Affairs , 112 M.S.P.R. 507 , ¶ 10 (2009) (finding that a letter from DOL submitted by the appellant with his petition for review showed he exhausted his remedies with DOL , and thus the Board had jurisdiction over his VEOA appeal). NOTICE OF APPEAL RIG HTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule re garding which cases fall within their 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within th e applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for r eview with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 5 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their 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 6 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment 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 j udicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then yo u may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for 4 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. 7 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov . Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U .S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses t he services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	HARPER_KENNETH_DE_3330_17_0365_I_1_FINAL_ORDER_1977118.pdf	2022-11-10	null	DE-3330	NP
3,940	https://www.mspb.gov/decisions/nonprecedential/HIGGINS_SEAN_C_AT_0752_15_0282_X_1_FINAL_ORDER_1977223.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SEAN C. HIGGINS, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER AT-0752 -15-0282 -X-1 DATE: November 10, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Joree Gunn Brownlow , Cordova, Tennessee, for the appellant. Bradley Flippin , Nashville, Tennessee, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The administrative judge issued a compliance initial decision granting the appellant’s petition for enforcement and finding the agency in partial noncompliance with the Board’s October 20, 2015 Order, which directed the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 agency to cancel the appellant’s rem oval and to retroactively restore him to duty, effective August 8, 2014. Higgins v. Department of Veterans Affairs , MSPB Docket No. AT -0752 -15-0282 -C-1, Compliance File, Tab 22, Compliance Initial Decision (CID). The matter was referred to the Board for consideration. See 5 C.F.R. § 1201.183 . For the reasons discussed below, we now find the agency in compliance and DISMISS the petition for enforcement. DISCUSSION OF ARGUME NTS AND EV IDENCE OF COMPLIANCE ¶2 In the compliance initial decision, the administrative judge found that the agency established that it paid the appellant back pay, including the appropriate amounts of interest; that the appellant was not entitled to overtime pay; and that the agency did not violate the Board’s status quo ante order when it failed to provide the appellant evidence that it had repaid the State of Tennessee for unemployment compensation payments. CID at 3-7. The administrative judge further found that the agency did not violate the status quo ante order when it failed to modify the appellant’s W -2 statements, or when it assigned him to the position he currently holds. CID at 8 -9. Specifically, the administrative judge found that the agency had attempt ed to return the appellant to the position from which he was removed, but that the appellant objected to this. Therefore, the agency placed him in another position. CID at 9. ¶3 The administrative judge found that the agency had not established compliance with two other aspects of the Board’s order, and therefore held that the agency must explain its withholding rate for Federal income tax and its back pay calculations. CID at 9 -11. Initial Responses ¶4 In response, the agency explained the changes in the ap pellant’s hourly rate of pay as follows: the back pay period ran from the pay period beginning August 10, 2014, through the pay period ending on December 12, 2014. Higgins v. Department of Veterans Affairs , MSPB Docket No. AT -0752 -15-0282 -X-1, 3 Compliance Referral File (CRF), Tab 1 at 5. On January 12, 2014, the appellant received a general adjustment increasing his annual salary. Id. at 5. The appellant received another general adjustment on January 11, 2015. Id. He received a within -grade increase f rom GS -5, St ep 5 to GS -5, Step 6 on October 18, 2015. Id. ¶5 Regarding income -tax withholding, the agency indicated that the gross back pay awarded to the appellant totaled $49,968.00 and was offset by interim earnings of $5,844.73, unemployment earnings o f $7,150.00, and a lump sum payment for unused annual leave of $962.08. Id. at 6. The adjusted gross back pay amount was therefore $36,011.19. Id. The taxable amount for the pay period also included current pay period earnings of $1,445.60 and interest of $1,014.65, for total earnings of $38,471.43. Id. The agency stated that the amount of taxes withheld on the back pay award was calculated by the Defense Finance and Accounting Service (DFAS). Id. at 7. Because the back pay award was included in the appellant’s regular pay stub for the pay period ending March 19, 2016, and was identified as a separate payment, DFAS used method 1b of the withholding guidance contained in section 7 of Circular E, resulting in a withholding amount of $15,405.39. Id. ¶6 The appellant submitted a response on May 10, 2017, alleging that his back pay award was “taxed twice” and that benefits were deducted from the award twice. CRF, Tab 4 at 5. He also reiterated his claims that he should have been granted overtime during t he back pay period; that the agency failed to return him to work by the deadlines set by the Board; and that the agency had not reimbursed the State of Tennessee for his unemployment compensation. Id. at 4-5, 8-10. He further alleged that the wrong entry -on-duty date was entered into his electronic official personnel file. Id. at 11 -12. Finally, he alleged that the agency placed him on leave without pay status without his knowledge and that this constituted a constructive termination. Id. at 16. 4 ¶7 The Bo ard issued an order on July 24, 2017, directing the agency to provide an explanation of taxes withheld from the appellant’s back pay award, including resulting overpayments and garnishments; an explanation of the pay rates used to calculate the back pay aw ard, including an explanation of whether scheduled within -grade increases were granted; confirmation of the entry -on-duty date used; and a response to the appellant’s allegations that the agency had subjected him to reprisal. CRF, Tab 7. Subsequent Resp onses ¶8 The agency submitted a response on August 8, 2017, stating that initially DFAS had mistakenly included the appellant’s interim earnings as taxable income for tax -withholding purposes. CRF, Tab 8 at 5. That mistake was corrected, and a corrected Wa ge and Tax statement for 2016 was sent to the appellant in April 2017. Id. at 6. The agency also stated that there were no wage garnishments related to tax withholding; however, the appellant was subject to a tax levy by the Internal Revenue Service, app arently due to unpaid Federal income taxes or related penalties. Id. at 6. The agency further identified three “debts” that resulted from the following errors in DFAS’s back pay calculations: (1) an incorrect double payment for the pay period ending August 19, 2014, resulting in an overpayment of $1,374.40; (2) the failure to initially withhold Thrift Savings Plan deductions from the appellant’s back pay award in March 2016, resulting in a debt of $308.57; and (3) payment for time not actually worked during the pay period ending March 18, 2017, resulting in an overpayment of $541.62. Id. at 6-7. ¶9 Concerning the issue of within -grade pay increases, the agency stated that, when he was removed on August 8, 2014, the appellant was a GS -5, Step 5. Id. at 9. After the Board reversed the removal, the agency reinstated the appellant and retroactively promoted him to Step 6 effective October 18, 2015, which was the date he would have been eligible for the increase to Step 6 had the removal 5 not occurred. Id. The appellant would not be eligible for another step increase until October 2017. Id. ¶10 The agency stated that the appellant’s entry -on-duty date is not incorrect in his official personnel file, as alleged. Id. at 10. Rather, the agency maintained that there is an incorrect entry -on-duty date in his internal electronic time and attendance system, known as VISTA, which does not reflect the date contained in his official personnel file. Id. The agency stated that the date shown in VISTA has no effect on the appellant’s salary or other benefits of employment. Id. The agency explained this discrepancy as follows: when the 2014 removal action was cancelled, the appellant had to be re -entered int o the VISTA system as a “new” employee, effective August 8, 2014, which resulted in that date being entered as his start date. Id. The agency added that it has been unable to alter this date in the system. Id. ¶11 The agency denied engaging in reprisal aga inst the appellant, noting that the supervisor that the appellant alleged was retaliating against him has not worked at the Memphis VA Medical Center since early 2016 and has not been the appellant’s supervisor since that time. CRF, Tab 8 at 11. ¶12 The appel lant responded on August 22, 2017, again reiterating that the agency did not provide an adequate explanation of its back -pay figures; that he had been “double taxed” on his back pay; that his entry -on-duty date was incorrect; and that he was returned to a position in Logistics rather than his previous position. CRF, Tab 9. The appellant further asserted that he was not returned to work by the deadlines set forth in the Board’s order, that he was subject to a “tax levy,” and that his leave was not properly restored. Id. at 10 -11. Finally, the appellant asserted that he was subject to unspecified reprisal by the agency and that he was subsequently subjected to termination. Id. at 11. 6 ANALYSIS ¶13 When the Board finds a personnel action unwarranted or not sustainable, it orders that the appellant be placed, as nearly as possible, in the situation he would have been in had the wrongful personnel action not occurred. House v. Department of the Army , 98 M.S.P.R. 530 , ¶ 9 (2005). The agency bears the burden to prove its compliance with a Board order. An agency’s assertions of comp liance must include a clear explanation of its compliance actions supported by documentary evidence. Vaughan v. Department of Agriculture , 116 M.S.P.R. 319, ¶ 5 (2011). The appellant may rebut the agency’s evidence of compliance by making “specific, nonconclusory, and supported assertions of continued noncompliance.” Brown v. Office of Personnel Management , 113 M.S.P.R. 325 , ¶ 5 (2010). ¶14 We find that the agency has submitted sufficient evidence to establish its compliance with the Board’s order. As discussed a bove, the agency submitted evidence indicating that the initial errors in the back pay calculations have been resolved and that the appellant has now received the appropriate amount of back pay. The agency also has explained the discrepancies in tax withh olding, as well as the appellant’s entry -on-duty date. The appellant has not convincingly countered the agency’s evidence and explanations. Rather, he has merely reiterated the same objections he made previously, without substantively addressing the addi tional evidence and explanations submitted by the agency. As the appellant has not made any specific allegations of reprisal, we find that no such reprisal has occurred. If the appellant intended to raise claims of reprisal going beyond the compliance pr ocess, he can file a new appeal addressing those claims. Likewise, if the appellant is attempting to appeal his termination, he must file a new appeal with the Board to do so, as this allegation is beyond the scope of this enforcement proceeding. ¶15 In light of the agency’s evidence of compliance, we find the agency in compliance and dismiss the petition for enforcement. This is the final decision of 7 the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations , section 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)). NOTICE 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 yo ur reasonable attorney fees and costs. To be paid, you must meet the requirements set out at Title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion for att orney fees and costs with the office that issued the initial decision on your appeal. NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following 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. 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. 8 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a pe tition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional info rmation about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules o f Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action 9 was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other i ssues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 10 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C . 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 3 The 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. 11 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is 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. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	HIGGINS_SEAN_C_AT_0752_15_0282_X_1_FINAL_ORDER_1977223.pdf	2022-11-10	null	AT-0752	NP
3,941	https://www.mspb.gov/decisions/nonprecedential/DOUGLAS_NOELLE_B_DC_0752_17_0130_I_1_FINAL_ORDER_1977280.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD NOELLE B. DOUGLAS, Appellant, v. DEPARTMENT OF JUSTIC E, Agency. DOCKET NUMBER DC-0752 -17-0130 -I-1 DATE: November 10, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Lawrence Berger , Esquire, Glen Cove, New York, for the appellant . Margo L. Chan , Esquire, and Susan E. Gibson , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Trista n L. Leavitt, Member FINAL ORDER ¶1 The agency has filed a petition for review of the initial decision, which mitigated the appellant’s removal to a 7 -day 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 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 erroneous interpretation of statute or regulation or the erroneous a pplication of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affec ted the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. The refore, we DENY the petition for review. Except as expressly MODIFIED to correct a statement by the administrative judge in addressing the penalty determination , we AFFIRM the initial decision. BACKGROUND ¶2 On October 21, 2016, the agency remove d the appel lant from her Chief Investigator position with the Justice Prisoner and Alien Transport System of the agency’s U.S. Marshals Service. Initial Appeal File (IAF), Tab 6 at 7. The appellant received a proposal notice stating that the agency’s Office of Prof essional Responsibility, Internal Affairs (OPR -IA) investigated an allegation that she misused her position by having a subordinate employee , a Management and Program Analyst (MPA), assist in preparing her Senior Executive Service (SES) application package and that her removal was proposed based on two charges: (1) misuse of position ( two specificat ions); and (2) lack of candor (four specifications). Id. at 134-45. The deciding official subsequently found that the evidence supported both charges (but not Specification B of charge 2) ,2 and thus, she sustained the charges and found the penalty of removal appropriate. Id. at 8-13. 2 Because the deciding officia l did not sustain Specification B of charge 2, the administrative judge did not address it. 3 ¶3 On appeal, the administrative judge sustained both specifications of charge 1. IAF, Tab 31, Initial Decision (ID) at 2-8. However, because the administrative judge found that the agency failed to present preponderant evidence to support any of the three specification s of charge 2, lack of candor, the second charge was not sustained. ID at 8-14. Based on the evidence a s a whole, including the deciding official’s proper consideration of the Douglas factors3 and her testimony that charge 1, standing alone, would warrant a maximum penalty of a 7-day suspension, the administrative judge mitigated the agency’s removal penalt y to a 7 -day suspension. ID at 16. ¶4 The agency has filed a petition for review .4 Petition for Review (PFR) File, Tab 1. The appellant has filed a response , and the agency has filed a reply to the appellant’s response. PFR File, Tabs 5-6. DISCUSSION OF ARGUMENTS ON REVI EW The administrative judge correctly found that the agency did not present preponderant evidence to support Specification A of the lack of candor charge. ¶5 Specification A of the agency’s lack of candor charge , referring to the MPA’s c ontribution to the SES package, states the following: “You displayed a lack of candor on February 17, 2016, during your sworn OPR -IA interview, when you stated in p art; ‘. . . Let me put this very clearly on the record. I did not use what [ the MPA ] wrote or provided .’” IAF, Tab 6 at 137 (italics in the original) . 3 In Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305 -06 (1981), the Board established criteria that deciding officials must consider in determining the appropriate penalty to impose for acts of miscond uct by Federal employee s. 4 With its petition for review, the agency submitted a n interim relief certification stating that the appellant was restored to her former position. PFR File, Tab 1 at 284-85. The agency also submitted a Standard Form 52 and a document from the National Finance Center database showing that the appellant was restored to her former position, effective March 27, 2017. Id. at 286-89. The appellant has not raised any issues of noncompliance with the interim relief order. In any case, given our disposition of this appeal in favor of the appellant, the issue of the agency’s com pliance with the interim relief order is now moot. See Wingate v. U.S. Postal Service , 118 M.S.P.R. 566, ¶ 3 n.1 (2012). 4 ¶6 On review, the agency contends that the administrative judge erroneously characterized S pecification A of the lack of ca ndor charge and as a result did not proper ly weigh the evidence. PFR Fi le, Tab 1 at 10-12. Specifically, the agency argues that the appellant “used what [ the MPA ] wrote and sent her” in her SES application. Id. The agency asserts that, because the appellant denied using anything the MPA wrote , and the evidence shows that t here are common words between what the MPA wrote and what the appellant submitted in her SES application, the agency presented sufficient evidence to prove the charge. The agency also argues that the administrative judge erred by expanding his analysis to address who “authored” the appellant’s entire SES package. Id. at 12. ¶7 Lack of candor and falsification are differ ent, although related, forms o f misconduct, and the latter is not a necessary eleme nt of the former; thus, lack of candor is a more flexibl e charge that need not require proof of intent to deceive. Ludlum v. Department of Justice , 278 F.3d 1280 , 128 3-84 (Fed. Cir. 2002). Nevertheless, lack of candor “necessarily involves an element of deception” and requires proof that : (1) the employee gave incorrect or incomplete information ; and (2) she did so knowingly. Fargnoli v. Department of Commerce , 123 M.S.P.R. 330 , ¶ 17 (2016). ¶8 Here, the administrative judge found that the appellant’s testimony was more credible than the MPA’s testimony. ID at 9-11. In particular , the administrative judge found that the OPR -IA interview occurred almos t 2 years after the appellant submitted her SES application and that the appellant credibly testified that she had no deceptive intent and had not known that her statem ent to the investigators was inaccurate or untrue. ID at 9. The administrative judge found further that, “although the agency combed through the application, it could identify only a few, very few, phrases [in] common” between what the MPA claims she wro te and the application submitted by the appellant. ID at 11. The administrative judge credited the appellant’s explanation that, even though some of the words may have been the same, it was not surprising given the nature of 5 the application. Id. The ad ministrative judge also credited the appellant’s testimony that the structure of her sentences and the focus of her message were different than the MPA’s draft and that she had created or “authored” the application. Id. Based on his review of the evidenc e and his credibility determinations, the administrative judge specifically found that the agency failed to present preponderant evidence showing that : (1) what the appellant told the investigators was incomplete or inaccurate ; and ( 2) she had any knowled ge or belief that her response was in any way inaccurate. ID at 11-12. ¶9 It is well established that the Board must defer to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on observing the demeanor of witnesses testifying at a hearing; the Board may overturn such determinations only when it has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002); see Purifoy v. Department of Veterans Affairs , 838 F.3d 1367 , 1373 (Fed. Cir. 2016) (clarifying tha t “[e]ven if demeanor is not explicitly discussed, assessing a witness’s credibility involves consideration of various factors, including a witness’s demeanor”). Here, the administrative judge thoroughly reviewed the hearing testimony and found credib le the appellant’s testimony that she had no deceptive intent and that she believed that her statement to the investigators was accurate and true. ID at 9-11. Althoug h the administrative judge did not cite the Board’s deci sion in Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458 (1987), we nonetheless find that he conducted a proper analysis required under Hillen in making his credibility determinations.5 ID at 9-12. Based on our 5 To re solve credibility issues, an administrative judge must identify the factual questions in dispute, summarize the evidence on each disputed question, state which version he believes, and explain in detail why he found the chosen version more credible, consid ering such factors as: (1) the witness ’s opportunity and capacity to observe the event or act in question; (2) the witness ’s character; (3) any prior inconsisten t statement by the witness; (4) a witness ’s bias, or lack of bias; (5) the contradiction of th e witness ’s version of events by other evidence or its consis tency 6 review of the record , including the hearing testimony, we see no basis upon which to disturb the administrative judge’s credibility determinations in this regard. Nor do we find any basis upon which to disturb the administrative judge’s conclusion that the agency failed to pr ove Specification A of the lack of candor charge . See Fargnoli , 123 M.S.P.R. 330 , ¶ 17. The administrative judge corr ectly found that the agency did not present sufficient evidence to support Specif ication C of the lack of candor charge . ¶10 Specification C of the lack of candor charge states the following: “You display ed a lack of candor on February 17, 2016, during your sworn OPR -IA interview, when you minimized the extent of [the MPA ’s] role in assisting you with your SE S promotion package.” IAF, Tab 6 at 138. The proposal notice quotes the appellant ’s assertion that the MPA’s role was “simply a second set of eyes” to review her application and see if “anything pops out,” while pointing out that the appellant sent numerous emails and documents to the MPA for her to incorporate into th e appellant’s SES application. Id. ¶11 On review, the agency asserts that the administr ative judge mischaracterized Specification C as requiring the agency to have to prove that the MPA “substantively contributed” to the appellant’s SES application package and that the administrative judge “did not give the proper weight to the voluminous emails exchanged” between the appellant and the MPA d uring that time. PFR File, Tab 1 at 12-15. The agency also contends that the appellant’s statement — that the MPA took her request to act as a second set of eyes different ly than what the appellant intended and that the MPA, on her “own accord ,” went “high and left” on this —shows that the appellant knew about the MPA’s “extreme” level of involvement in preparing her SES application. PFR File, Tab 1 at 12-13; ID at 12; IAF, Tab 8 at 56, 58 -59; Hearing Transcript (HT) at 170-71 (testimony of with other evidence; (6) the inherent improbability of the witness ’s version of events; and (7) the witness ’s demeanor. Hillen , 35 M.S.P.R. at 458. 7 the appellant ); Hearing C D 1, Track 1 (testimony of the appellant).6 The agency contends, moreover, that the many emails the appellant sent to the MPA and their frequent telephone calls demonstrate that the appellant knew that the MPA’s assistance on the SES package was more than merely a “second set of eyes.” PFR File, Tab 1 at 12-13. ¶12 The administrative judge found that the MPA “really had little or no substantive contribution to the S ES application package.” ID at 12. In support, the administrative judge found that the appellant credibly testified that she considered the MPA’s involvement to be nothing more than a “second set of eyes ” in reviewing her application package because her previous SES application , done without the MPA’s assistance, was “good enough to get [her] in the door” for an interview . ID at 12. The administrative judge likewise questioned the “plausibility” of the MPA’s “adamant claim that she devoted all her time, both official and a significant portion of her private time for weeks ,” to creating the appellant’s SES application and found it “inherently implausible that it was her total and exclusive activity for days on end as she claimed.” ID at 11. The administr ative judge also observed that the MPA appeared to be exaggerating her role in assisting the appellant as revenge against the appellant because she changed the MPA’s flexible work schedule and that the many emails and telephone calls seem to have resulted from the MPA’s “intrusive, hyper -sensitive distraction[s]” while involved in the endeavor and the MPA’s strategic maneuvering “to attack” the appellant and position herself as a victim.7 ID at 12-13. In light of such testimony, the administrative judge s tated that he 6 A copy of the hearing transcript is in the file below and the agency submitted another copy with its petition for review. The record below contains a copy of the hearing CD. 7 The record reflects that, while assisting with the appellant’s SES applicati on, the MPA had a very lax and informal telecommuting work arrangement that included little supervisory oversight and no required days in the office or official core work hours. IAF, Tab 7 at 39 -30, Tab 8 at 15-25, 56 -57, 68, 86 -89, 94 -95. Because the ot her employees were not allowed to telework, the MPA’s flexible telework arrangement became an issue within the office and was subseque ntly changed by the appellant. Id. 8 moderated the weight he assigned to the MPA’s testimony. Id. The administrative judge concluded that the appellant’s testimony —recalling that the MPA had little to no substantive contribution to the SES package , rendered almost 2 years afte r the SES application was created —was more credible than the MPA’s testimony . ID at 12. ¶13 Similar to our reasoning above regarding Specifica tion A, proving that the appellant knowingly gave incorrect or incomplete information during the OPR -IA interview turns on the credibility of the witnesses. Here, the administrative judge found credi ble the appellant’s testimony that she had no de ceptive intent and that she had not known that her statement to the investigators —concerning the extent of the MPA’s role i n assisting her with the SES application —was inaccurate or untrue . ID at 12-13; see Fargnoli , 123 M.S.P.R. 330 , ¶ 17 (indicating what an agency must do to prove a lack of candor charge). As stated above, we will defer to credibility determinations when they are based on an administrative judge’s observing the demeanor of witnesses testifying at a hearing . Haebe , 288 F.3d at 1301 . We find that the agency’s assertions regarding credibility fail to provide “sufficiently sound” reasons for granting review because they constitute mere disagreement with the administrative judge’s determinations and fact findings. Sabio v. Department of Veterans Affairs , 124 M.S.P.R. 161, ¶¶ 38-39 (2017); Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 105 -06 (1997) (finding that the Board will defer to an administrative judge’ s credibility findings and will not grant a petition for review based on a party’s mer e disagreement with those findings). Consequently, we agree with the administrative judge that the agenc y failed to prove Specification C because the agency failed to establish that the appellant minimized the extent of the MPA’s role in assist ing the appellant with the SES promotion package. 9 The agency did not present preponderant ev idence to support Specification D of the lack of candor charge. ¶14 Specification D charges the following: “You displayed a lack of candor on February 17, 2016, du ring your sworn OPR -IA interview, when you stated that you did not know if assisting you on your SES promotion package interfered with [the M PA’s] official work.” IAF, Tab 6 at 138. The details of Specification D state that the MPA was communicating with the appellant through numerous “personal conversations, telephone calls, and email exchanges during the day, weekends, and off hours” and that it was “implausible” that the appellant was not aware that the MPA was “spending an inordi nate amount of time” on the SES package when she should have been working on official Government business. Id. at 138-39. ¶15 On review, the agency contends that the administrative judge erred by not properly weighing the evidence showing that the appellant knew that the MPA was working on her SES application on official work time. PFR File, Tab 1 at 15-17. The agency asserts that the dates and times of the numerous email communications reflect that contact between the appellant and the MPA occurred both on and off official duty hours . The agency also asserts that the appellant testified that the MPA’s supervisor advised her that the MPA worked on the SES package during official hours ; that she replied that the MPA should not be using official time ; and th at she did not tell the MPA not to work on the SES package during official time. Id. at 16. The agency further relies on the MPA’s testimony that she considered the SES package to be an official assignment and that the appellant did not discuss with her whether or not to complete the work on official time. Id. The agency contends that the circumstantial evidence thus supports a finding that the agency proved that the appellant knew the MPA’s work on her SES application package was p erformed during offic ial time. Id. ¶16 The administrative judge credited the appellant’s testimony that she did not know, and that n either the MPA nor the MPA’s supervisor told her, that the 10 MPA’s work on the SES application interfered with h er official work duties. ID at 13. The administrative judge also considered the appellant’s testimony that she believed she instructed the MPA to work on the application on ly during nonduty hours. ID at 9. Further, the administrative judge explicitly discredited the MPA’s “overwrough t descriptions of exclusive self -sacrificing consecration to the appellant’s cause ” and determined that the MPA’s “choice to wholly commit virtually every waking minute to the appellant’s cause was . . . quite understandably, unknown to the appellant.” Id. In addition, t he administrative judge discussed the testimony of an agency Information Technology Specialist who stated that the MPA told her that she had written the appellant’s Executive Core Qualifications during evenings when the MPA was off work. ID at 10. The administrative judge found the evidence of record consistent with the app ellant’s statement that she did not know if the MPA’s work on her SES application package interfered with the MPA’s official work. Id. ¶17 We find that the administrativ e judge thoroughly addressed the credibility issues necessary to determine whether the appellant lacked cand or when she stated that she did not know whether assisting with the appellant’s SES promotion package interfered with the MPA’s off icial work. ID a t 13-14. These findings were implicitly based on the demeanor of the witnesses and are entitled to deference . Id.; see Purifoy , 838 F.3d at 1373. Further, the administrative judg e’s conclusion in Specification D was based on the overall evidence and the testim ony previou sly discussed in Specifications A and C of the lack of candor charge. Id. ¶18 We conclude that the agency’s assertions fail to provide a basis for overturning the administrative judge’s credibility determinations and fact findings. Haebe , 288 F.3d at 1301. Accordingly, because the agency failed to prove that the appellant knew that her statements during the OPR -IA interview were false, we find no basis upon which to disturb the administrative judge’s 11 determination that the agency failed to prove the charge of lack of candor. See Fargnoli , 123 M.S.P.R. 330 , ¶¶ 16-18. The administrative judge appropriately mitiga ted the removal penalty to a 7 -day suspension. ¶19 On review, the agency argues that the administrative judge erred by failing “to reference or consider Appellant’s prior disciplinary record, which included recent serious sustained charges” in his penalty an alysis when he mitigated the removal to a 7 -day suspension. PFR File, Tab 1 at 18. Specifically, the agency asserts th at the administrative judge ignored an “intervening” disciplinary action that occurred after the propos al notice but before the issued d ecision of removal , which consisted of sustained charges for similar misconduct and resulted in the appellant accepting , pursuant to a settlement agreement, a demotion from an SES to a GS -15 position and a 15 -day suspension. Id. at 6, 18 -21. The agency thus contends that the administrative judge inaccurately portrayed the deciding official’s testimony as stating that the appellant had no prior discipline. Id. at 18. ¶20 The deciding official, while aware of the intervening discipline, did not consider it to be a prior discipline or an aggravating factor. Rather, she t estified that the appellant “did not have any prior formal discipline ,” and she clarified that when the appellant made “ her oral reply [to the proposed removal] , she had been demoted and reass igned to another position —to a lower position so even though that disciplinary [action occurred] after the instant offense [at issue in this appeal], it’s still part of the record .” HT at 198 (testimony of the deciding official). The administrative judge specifically questioned the deciding official about the intervening discipline and asked what , if any, impact knowing about the appellant’s demotion had on the deciding official and how it affected her penalty determination . Id. (question of the administ rative judge) . The deciding official testified that she found the appellant’s “prior record . . . showed a pattern of behavior, but it had nothing to do with the prior discipline.” HT at 198 -99 (testimony of the deciding official). 12 ¶21 Although the proposal notice advised the appellant that the proposing official considered the appellant’s intervening demotion to “show a pattern of unethical behavior,” the deciding official’s testimony reflects that she did not rely upon it as an aggravating factor and that she considered it only in relation to the appellant’s potential for rehabilitation . HT at 199, 210-11. We find no error by the administrative judge in not considering the interveni ng discipline as an aggravating factor. ¶22 To the extent the agency may be assert ing that the administrative judge confused the timing of an oral admonishment the appellant received in 2011 f or the intervening discipline of a demotion and 15 -day suspe nsion, we agree. PFR, Tab 1 at 18. The administrative judge incorrectly stated that the deciding official “commented that after the proposal notice, but before the issued decision of removal, the appellant had received an oral admonishment.” ID at 15. The administrative judge must have been referring to the demotion and reassignme nt, not the oral admonishment. Nevertheless, because the administrative judge correctly found that the deciding official did not consider the intervening discipline to be an aggravating factor, ID at 15; HT at 181-82, 198-99, we find that this adjudic atory error did not prejudice the appellant’s substantive rights . Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984). ¶23 Finally, the agency argues that the appellant’s overall work record, including the demotion and 15 -day suspension , supports the removal penalty for a single charge of misuse of position. PFR File, Tab 1 a t 21-22. The agency also argues that because the a ppellant received an oral admonishment in 2011 f or misuse of position, this was not her first offense. ¶24 When , as here, the Board sustains fewer than all of the agency’s charges, it may mitigate the agency’s penalty to the maximum reasonable pe nalty so lon g as the agency has not indicated in either a final decision or in proceedings before the Board that a lesser penalty be imposed on fewer charges. George v. Department of the Army , 104 M.S.P.R. 596 , ¶ 10 (2007) , aff’d , 263 F. App’x 889 (Fed. Cir. 13 2008) . In this case , the administrative judge correctly found that the deciding official testified that the appellant had no prior discipli ne and that the penalty for a misuse of position charge ranged from a reprimand to a 7 -day suspension for a first offense. HT at 206. Moreover, the deciding official, who was aware of the 2011 oral admonishment as well as the intervening demotion and 15 -day suspension, explic itly testified that, if she had not sustained the l ack of candor charge, she would not have removed the appellant for a sustained charge of misu se of position. HT at 214 (testimony of the deciding official) . Thus, we find that in assessing the penalty, the administrative judge deferred to the deciding official’s testimony that she wo uld not have removed the appellant and that the maximum penalty for a first offense of misuse of position was a 7 -day suspension . See generally Lachan ce v. Devall , 178 F.3d 1246 , 1260 (Fed. Cir. 1999) (holding that, if fewer than all of the charges a re sustained and the agency has not indicate d in either its final decision or in proceedings before the Board that it desires that a lesser penalty be imposed on fewer charges, the Board may mitigate the agency’s penalty to the maximum reasonable penalty). Despite the agency ’s argument on review th at the removal penalty is warranted based on the appellant’s intervening discipline, as we stated above, the deciding official was fully aware of this discipline , and she testified that she did not rely on it as an aggravating factor. In addition, the ora l admonishment, which is an informal action and usually constitutes the first step in progressive discipline, although notifying the appellant that her misuse of position in the future could be cause for discipline, could not be considered a prior discipli nary offense or infraction when assessing the penalty here. Therefore , we sustain the penalty determination . Accordingly, we affirm t he initial decision as modified herein. ORDER ¶25 We ORDER the agency to cancel the removal and substitute a 7 -day suspensi on without pay , and to restore the appellant effective October 21, 2016 . 14 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. ¶26 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Perso nnel Management’s regulations, no later than 60 calendar days after the date of this decision. We ORDER the appellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to provide all ne cessary information the agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, interest due, and/or other benefits, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calend ar days after the date of this decision. ¶27 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). ¶28 No later than 30 days after the agency tells the appellant that it has fully carried out the Board’ s Order, the appellant may file a petition for enforcement with the office that issued the initial decision on this appeal if the appellant believes that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons wh y the appellant believes that the agency has not fully carried out the Board ’s Order, and should include the dates and results of any communications with the agency. 5 C.F.R. § 1201.182 (a). ¶29 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all documentation necessary to process payments and adjustments resulting from the 15 Board’s decision in accordance with the attached list s so that payment can be made within the 60 -day period set forth above. NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set forth at title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal. NOTICE OF APPEAL RIG HTS8 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 8 Since the issuance of the initial decision in this matter, the Board may have upda ted the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 16 within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropria te one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 2043 9 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for informati on regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 17 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that 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 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: 18 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a 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 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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.9 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 9 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in c ertain 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. 151 0. 19 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 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 und ertaken during the back pay period to replace federal employment. Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also, include record of any unemployment earning statements, workers’ compensation, CSRS/FERS retirement annu ity payments, refunds of CSRS/FERS employee premiums, or severance pay received by the employee upon separation. Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment they may have received. The payroll office must collect the debt from the back pay award. The annual leave will be restored to the employee. Annual leave that exceeds the annual leave ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g). 2 NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES Below is the information/documentation required by National Finance Center to process payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit Systems Protection Board, EEOC, and courts . 1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information describing what to do in accordance with decision. 2. The following information must be included on AD -343 for Restoration: a. Employee name and social security number. b. Detailed explanation of request. c. Valid agency accounting. d. Authorized signature (Table 63). e. If intere st is to be included. f. Check mailing address. g. Indicate if case is prior to conversion. Computations must be attached. h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected (if applicable). Attachments to AD -343 1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium, etc. with number of hours and dates for each entitlement (if applicable). 2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amoun ts. 3. Outside earnings documentation statement from agency. 4. If employee received retirement annuity or unemployment, provide amount and address to return monies. 5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable) 6. If employee was unable to work during any or part of the period involved, certification of the type of leave to be charged and number of hours. 7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave to be paid. NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and required data in 1 -7 above. The following information must be included on AD -343 for Settlement Cases: (Lump Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.) a. Must provid e same data as in 2, a -g above. b. Prior to conversion computation must be provided. c. Lump Sum amount of Settlement, and if taxable or non -taxable. If you have any questions or require clarification on the above, please contact NFC’s Payroll/Personnel Operations at 504 -255-4630.	DOUGLAS_NOELLE_B_DC_0752_17_0130_I_1_FINAL_ORDER_1977280.pdf	2022-11-10	null	DC-0752	NP
3,942	https://www.mspb.gov/decisions/nonprecedential/FINCH_GREGORY_L_DC_3443_17_0246_I_1_FINAL_ORDER_1977291.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD GREGORY L. FINCH, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER DC-3443 -17-0246 -I-1 DATE: November 10, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Gregory L. Finch , Fort Walton Beach, Florida , pro se. Judith A. Fishel , APO, AE, for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon, Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a pe tition for review of the initial decision, which dismissed his appeal for lack of jurisdiction . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the ini tial decision is based on an erroneous 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not 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 petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 The appellant filed an appeal challenging the agency’s denying his request for a curtailment of his assig nment as an Installation Food Advisor at the U .S. Army base located at Camp Bondsteel, Kosovo.2 Initial Appeal File (IAF), Tab 1 at 6, 8 -12. Specifically, o n June 1, August 25, and October 17, 2016, the appellant submitted written formal request s for cur tailment of his assignment in Kosovo. Id. at 8-10; IAF, Tab 11 at 4 -9. It is undisputed that the agency denied his requests on January 3, 2017. IAF, Tab 1 at 4, Tab 12 at 5. The appellant filed this appeal on January 11, 2017, asserting that the agency ’s den ying his request violated two of the merit system principles. IAF, Tab 1 at 6. The appellant also checked a box on the appeal form indicat ing that he had received a negative suitability determination. Id. at 3. ¶3 After issuing an order to show cau se to the parties regarding jurisdiction and considering their responses , the administrative judge dismissed the appeal for 2 On petition for review, t he appellant has submitted documentation showing that his request to curtail his assignment was granted effective March 1, 2017. P etition for Review File, Tab 4. 3 lack of jurisdiction , finding that den ying a request for curtailment of the appellant’s assignment at Camp Bondsteel is not an other wise appealable action within the Board’s jurisdiction under 5 U.S.C. § 7512 (1)-(5). IAF, Tab 14, Initial Decision (ID) at 4. The administrative judge also found that the appellant’s request for a tour curtailment is analogous to den ying a reassignment opportunity and that , absent a reduction in grade or pay, a reassignment is not an adverse action within the Board’s jurisdiction. ID at 5. In this connection, the administrative judge found that the appellant failed to establish that his pay was reduced. Id. She further concluded that, to the extent the appellant was alleging that his position classification was improper, such claim did not form the basis for jurisdiction over this matter. ID a t 6. The administrative judge found that, while the appellant raised an allegation of a prohibited personnel practice, the Board does not have j urisdiction over an allegation of a prohibited personnel practice absent an otherwise appealable action within the Board’s jurisdiction . ID at 5-6. Similarly, the administrative judge found that, because the merit system principles are only intended to provide guidance to agencies, they do not constitute an independent basis for Board review. ID at 6. Concludin g, the administrative judge found no negative suitability determination at issue in this appeal. ID at 7-8. ¶4 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency filed a response , and the appellant has filed a reply. PFR File, Tabs 3 -4. DISCUSSION OF ARGUME NTS ON REVIEW The appellant has failed to establish that the Board has jurisdiction over the agency’s action denying his request for a curtailment of his assigned duty. ¶5 On review , the appellant reasserts the bases for his request for curtailment, specifically, that he is being prevented from performing the work duties specified in his position description, including travel , which he was led to believe he would perform while in his Installation Food Advisor position at Camp Bondsteel . PFR 4 File, Tab 1 at 3. He further contends that he has been denied training and that, as a result of these issues, the agency should have granted his request for curtailment. Id. The appellant also asserts that, although he m ay not have a valid legal claim, morally he believes that he has not been treated fairly. PFR File, Tab 4 at 3. ¶6 While the appellant continues to challenge the agency’s den ying his request , he has failed to explain how the administrative judge erred or to provide any evidence in support of Boar d jurisdiction . PFR File, Tabs 1, 4; see 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 serious evidentiary challenge justifying a complete review of the record) ; Weaver v. Department of the Navy , 2 M.S.P.R. 129 , 133 (1980) (finding that before the Board will undertake a complete review of the record, the petitioning party must explain wh y the challenged fac tual determination is incorrect and identify the specific evidence in the recor d which demonstrates the error) , review denied , 669 F.2d 613 (9th Cir. 1982) (per curiam) . ¶7 Nevertheless , we have considered the appellant’s arguments on review concerning his assigned duties , training, travel, and additional pay and benefits . However, we discern no reason to disturb the well -reasoned findings of the administrative judge that the Board lacks jurisdiction over this matter . See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 105 -06 (1997) (finding no reason to disturb the administrative judge’s findings when she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions) . 5 NOTICE OF APPEAL RIG HTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which 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 rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 6 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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 7 to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case, and your representative receives this decision before you do, then 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 8 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of is suance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court a t the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscour ts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endo rses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 The original st atutory provision that provided for judicial review of certain whistleblower claims by any court of 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 a llows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 9 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	FINCH_GREGORY_L_DC_3443_17_0246_I_1_FINAL_ORDER_1977291.pdf	2022-11-10	null	DC-3443	NP
3,943	https://www.mspb.gov/decisions/nonprecedential/CARMICHAEL_JAMES_ANDREW_DC_1221_15_0840_W_1_FINAL_ORDER_1976665.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JAMES ANDREW CARMICH AEL, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER DC-1221 -15-0840 -W-1 DATE: November 9, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 M. J. Euchler , Esquire, Virginia Beach, Virginia, for the appellant. Timothy O ’Boyle , Hampton, Virginia, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavit t, Member FINAL ORDER ¶1 The appellant has filed a petition for revie w 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 follow ing 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 administrativ e 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 lega l 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 expressl y MODIFIED by this Final Order to clarify the appellant’s status and to clarify that the agency, and not the appellant, has the burden of proof regarding evidence that it takes similar actions against employees who are not whistleblowers but who are otherw ise similarly situated , we AFFIRM the initial decision. BACKGROUND ¶2 The agency appointed the appellant to th e excepted -service position of Clinical Pharmacist. Initial Appeal File ( IAF), Tab 7 at 27.2 Upon the recommendation of the Chief of Pharmacy , the Human Resources Officer terminated the appellant less than 1 year after his appointment and prior to hi m 2 The administrative judge referred to the appellant as a probationary employee. IAF, Tab 102, Initial Decision (ID). This term refers to individuals who are serving a probationary period and, unlike the appellant, are in the competitive service and subject to 5 C.F.R. § 315.806 . Instead, the appellant, a nonpreference eligible who was not serving an initial appointment pending conversion to the competitive service, was an excepted -service appointee under 38 U.S.C. § 7401 (3) who had not completed the requisite 2 -year trial period for becoming an “employee” pursuant to 5 U.S.C. § 7511 (a)(1)(C). See Barrand v. Department of Veterans Affairs , 112 M.S.P.R. 210 , ¶ 12 (2009) ; IAF, Tab 7 at 27. Any error by the administrative judge in referring to the appellant as a probation ary employee is harmless because it has no effect on his substantive rights. See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984). 3 completin g the applicable trial period .3 Id. at 10-12. After exhausting his administrative remed ies with the Office of Special Counsel, the appellant filed the instant IRA appeal and requested a hearing. IAF, Tab 1. The administrative judge conducted a hearing and then issued an initial decision denying the appellant’s request for corrective action. IAF, Tab 102, Initial Decision (ID). ¶3 The appellant has filed a petition for review , and the agency has responded in opposition to his petition. Petition for Review (PFR) File, Tabs 3, 5. DISCUSSION OF ARGUME NTS ON REVIEW ¶4 On review, the appellant chall enges the administrative judge’s finding that the agency established by clear and convincing evidence that it would have terminated him absent his protected disclosures. PFR File, Tab 3 at 9-14. The administrative judge found that the appellant satisfied the proof requirement for establishing that his protected disclosures were a contributing factor in his termination because he made numerous disclosures between March 3, 2014 , and January 30, 2015, and he was terminated less than a year later, on February 3, 2015 . ID at 50. However, she found that the agency’s evidence in support of its action was extremely strong, the acting agency officials did not have a strong motive to retaliate, and the appellant failed to identify similarly situated employ ees who were not terminated . ID at 52-62. She thus concluded that the agency showed that it would have terminated the appellant regardless of his protected disclosures. ID at 62. For the reasons discussed below, we agree. The appellant established a prima facie case of whistleblower retaliation . ¶5 To establish a prima facie case of re taliation for whistleblowing under the Whistleblower Protection Enhancement Act of 2012 , the appellant must prove, by 3 The appellant’s second -line supervisor left the agency in November 2014. Hearing Transcript (HT) Day 1 at 346 (testimony of the appellant’s second -line supervisor) . After the appellant’s second -line supervisor left, the Chief of Pharmacy became his second -line supervisor and recommended the appellant’s removal. HT Day 1 at 240, 303 (testimony of the Chief of Pharmacy). 4 preponderant evidence, that he made a protected disc losure or engaged in protected activity that was a co ntributing factor in the agency’ s decision to take or fail to take a personnel action . 5 U.S.C. §§ 1221 (e)(1), 2302(a), (b)(8), (b)(9)(A)(i), (B), (C), or (D);4 Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶ 6 (2015). He may meet this burden through circumstantial ev idence, such as evidence that the official taking the personnel action knew of the disclosure and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the p ersonnel action . Mastrullo v. Department of Labor , 123 M.S.P.R. 110, ¶ 18 (2015) . Here, the administrative judge found, and we agree, that the appellant established, through the aforementioned knowledge -timing test, that several of the appellant’s protected disclosures were a contributing factor in the agency’s decision to terminat e him. ID at 49-50. The agency proved by cle ar and convincing evidence that it would have terminated the appellant absent his protected disclosures. ¶6 If the employee meets his burden of showing that the protected disclosures were a contributing factor in the relevant personnel action, the Board then will consider whether the agency has proven that it would have taken or failed to take the same personnel action absent his whistleblowing. Campbell v. Department of the Army , 123 M.S.P.R. 674, ¶ 12 (2016) . In determining whether an agency has met its burden of proving that it would have terminated the appellant absent his whistleblowing , the Bo ard 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 in volved in the decision; an d (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; 4 We have reviewed the relevant legislation enacted during the pendency of this appeal and have concluded that it doe s not affect the outcome of the appeal. 5 see also Carr v. Social Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999) .5 The Board does not view the Carr factors as discrete elements and instead will weigh the factors together to determine whether the evidence is clear and convincing as a whole . Campbell , 123 M.S.P.R. 674, ¶ 12. The agency presented strong evidence in support of the termination action. ¶7 The administrative judge found that the agency provided strong evidence in support of the appellant’s termination, including by showing that he was resistant to his supervisor and lost his temper several times. ID at 58. The appellant challenges this finding. PFR File, Tab 3 at 11-12. He asserts that his dispute with an IV Ro om Technician a nd the fact that he was upset with his first -line supervisor when receiving his performance appraisal should not have formed the basis for his termination because the incidents were not mentioned in his performance appraisal , which his secon d-line supervisor upgraded to an excellent rating after he contested the initial rating . Id. First, the incident concerning his receipt of his performance appraisal occurred outside of the rating period , and it would have been inappropriate for the super visor to consider the incident for that performance appraisal. Second, t he appellant’s first-line supervisor and the appellant both testified that , when the appellant initially received his appraisal, she informed him that his interactions with his coworkers were problematic , and we find it reasonable that those concerns were not reduced to writing . Hearing Transcript (HT) Day 1 at 30-31 (testimony of the appellant’s first-line supervisor); HT Day 2 at 314 (testimony of the appellant); IAF, Tab 38 at 32. 5 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). W e are unaware of other circuit courts that have considered this issue. 6 Third, although the appellant’s second -line supervisor raised the appellant’s rating to excellent , IAF, Tab 38 at 32, he properly viewed the incidents to be conduct, rather than performance -related, and, therefore, did not consider them in assessing the app ellant’s performance during the rating period, HT Day 1 at 365-66, 372, 375 -76, 378 (testimony of the appellant’s second -line supervisor). Accordingly, we find no reason why the appellant’s raised performance evaluation would detract from the agency’s strong evidence in support of his termination based on conduct unbecoming . See McCarthy v. International Boundary & Water Commission , 116 M.S.P.R. 594, ¶ 61 (2011) (finding tha t the appellant’s conduct was problematic and that the agency had a strong basis for directing his termination during his trial period ), aff’d , 497 F. App’x 4 (Fed. Cir. 2012). The acting agency officials did not have a strong motive to retaliate against the appellant. ¶8 The appellant next argues that his first -line supervisor should not have had the authority to terminate him because she was the subject of his disclosures. PFR File, Tab 3 at 12. We disagree, as those decisions are within an agency’s discretion . However , the Board will consider whether an official was the subject of the appellant’s disclosure s in determining the strength of an agency official’s motive to retaliate. See Herman v. Department of Justice , 119 M.S.P.R. 642, ¶ 16 (2013) . Here, the administrative judge found that the appellant’s first-line supervisor was the subject of only one of the appellant’s disclosures, which the administrative judge found was not protected. ID at 7-8, 46. The administrative judge also found that the supervisor was receptive to his criticism about other issues . ID at 59-60. For instance, she directed that the IV Room Technician be retrained regarding rules in the IV room after the appellant complained about her noncompliance and also included him on a working group about concer ns in the IV room. HT Day 1 at 32 (testimony of the appellant’s first -line supervisor) . Thus, we find that she was receptive to at least some of the appellant’s comments. 7 ¶9 We have considered that the appellant’s second -line s upervisor received disclosures from him , which related to standard s that the agency was required to meet. HT Day 1 at 347, 350 (testimony of the appellant’s second -line supervisor). However, t here is no basis for finding that these emails caused a strong motive to retaliate . Further, we defer to the administrative judge’s conclusion that the Chief of Pharmacy had little motive to retaliate because she testified credibly that she welcomed disclosures and that they provided a means of learning about problems . ID at 59-60; see Purifoy v. Department of V eterans Affairs , 838 F.3d 1367 , 1372 (Fed. Cir. 2016) ; IAF, Tab 18 at 10-17, Tab 72 at 24-26. ¶10 The appellant next argues that the agency did not demonstrate that it would have terminated him absent his d isclosures because the Human Resources Officer testified that the Chief of Pharmacy deliberately failed to tell her about the disclosures and that, if she knew about the disclosures, she would not have terminated him. PFR File, Tab 3 at 9-10; HT Day 1 at 337, 342, 344 (testimony of the Human Resources Officer). The appellant cites to her testimony, which he asserts establishes that she now questions the veracity and intent of the officials who requested his termination. PFR File, Tab 3 at 9; HT Day 1 at 344 (t estimony of the Human Resources Officer). ¶11 To the extent that the appellant is arguing that the Human Resources Officer ’s testimony demonstrates that agency officials concealed his protected disclosures despite the fact that this information normall y would be made available, this could indicate a retaliatory motive . However, the administrative judge found, b ased in part upon t he testimony of the appellant’s first -line supervisor and the Chief of Pharmacy, that agency officials did not have a strong motive to retaliate. ID at 60. We defer to these findings, which are implicitly based upon these witnesses’ demeanor , and agree that the agency officials did not have a strong motive to retaliate. See Purifoy , 838 F.3d at 1372 . Furthermore, in a whistl eblower retaliation case, the Board ultimately must determine whether the 8 agency would have taken the same action absent the appellant’s protected disclosures . Campbell , 123 M.S.P.R. 674, ¶ 12. The testimony of the Human Resources Officer is supportive of this ultimate conclusion because she testi fied that she terminated the appellant without actual knowledge of his disclosures . ¶12 The appellant next asserts that the agency attempted to further its retaliatory motive by collecting complaints from his coworkers to support his termination . PFR File, Tab 3 at 13. However, the Procurement Narcotics Purchaser Pharmacy Supervisor (S. B.) testified that employees had complained to him about the appellant’ s behavior and that he told the employees that they should put their complain ts in writing. HT Day 1 at 418-20 (testimony of S. B.). This testimony is supported by the testimony of the Chief of Pharmacy , who confirmed that the employees confided in S. B., who would pass on their written complaints to the Chief of Pharmacy . HT Day 1 at 258-59, 276 (testimony of the Chief of Pharmacy ). The IV Program Manager stated that he sent a written statement complaining about the appellant without being instructed to do so. HT Day 2 at 87-91 (testimony of the IV Program Manager) . The appellant’s general assertions do not contradict this evidence and testimony . Consequently , we find that the evidence reflects that the agency was not collecting complaints from the appellant’s coworkers simply to support its agenda of terminati ng him because of his protected disclosures.6 6 On review, the appellant has submitted a consent order, entered into approximately 1 month after the initial decision, in which S.B. agreed to the suspension of his pharmacy license . PFR File, Tab 3 at 16-22. The Board may grant a petition for review when the petitioner establishes that new and material evidence is available that, despite his due diligence, was not available when the record closed. 5 C.F.R. § 1201.115 (d)(1). Evidence is material when it is of sufficient weight to warrant an outcome different from that of the initial decision. Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980). To the extent that the appellant has submitted this order to impeach S.B.’s credibility, evidence submitted on review mere ly to impeach a witness’s credibility generally is not new and material, and we have not considered it as such. Bucci v. Department of Education , 42 M.S.P.R. 47 , 55 (1989). Nevertheless, even if we did consider this evidence, it does not affect our determination that the agency established by clear and convincing evidence that it would have terminated the appellant absent his 9 ¶13 We further consider that the officials taking the personnel action against the appe llant did not suffer ramifications as a result of his disclosures. ID at 60; HT Day 1 at 199 (testimony of the appellant’s first -line supervisor) , 319 (testimony of the Chief of Pharmacy ); see Runstrom v. Department of Veterans Affairs , 123 M.S.P.R. 169, ¶ 17 (2016) . We ha ve found , however, that an appellant’s criticism s, which reflect negatively on employees in their cap acities as managers , are sufficient to establish retaliatory motive . Chavez v. Department of Veterans Affairs , 120 M.S.P.R. 285 , ¶ 33 (2013); see also Whitmore v. Department of Labor , 680 F.3d 1353 , 1370 (Fed . Cir. 2012) . Nonetheless, weighing all evidence, including the testimony of the appellant’s first -line supervisor, his second -line supervisor, the Chief of Pharmacy, and the Human Resources Officer, we conclude that the agency did not have a strong motive to retaliate against the appellant. We agree with the administrative judge that there are no similarly situated employees who were not terminated. ¶14 Finally, t he appellant argues that the agency treated him more harshly than another pharmacist with whom he had engaged in an alter cation .7 PFR File, Tab 3 at 11-12. In considering the discipline imposed in response to the altercation with the other pharmacist , the administrative judge noted the testimony of the appellant’s first -line supervisor that she verbally counseled the other pharmacist but that she treated this employee less harshly than the appellant because she was unaware of other misconduct in which that pharmacist had engaged and because the other pharmacist had worked at the agency for a long protected disc losures. The appellant made disclosures to S.B., and S.B. was involved in the aftermath of an altercation in which the appellant was involved. However, S.B. was not involved with taking the personnel action against the appellant, and any connection of th is evidence to th e appeal is otherwise extremely remote. 7 The appellant argues that he was treated more harshly than the IV Room Technician. PFR File, Tab 3 at 11. However, she was a longtime employee who retired . ID at 53. Accordingly, we find that she was not similarly situated to the appellant . 10 time . ID at 61; HT Day 1 at 193-94 (testimony of the appellant’s first -line supervisor) . We agree with the administrative judge that this employee was not similarly situated to the appellant given that she was a tenured employee. T hus, we agree with the administrative judge that the agency did not treat the appellant more harshly than a similarly situated nonwhistleblower .8 ID at 61-62. Nevertheless, we have considered that the agency has otherwise presented no evidence of similarly situated employees, under which circumstance the Board has held that the third Carr factor cannot weigh in favor of the agency. Soto , 2022 MSPB 6 , ¶ 18. ¶15 Regardless , considering that the agency presented strong evidence in support of its decision to terminate the appellant during his trial period and the lack of a strong motive to retaliate against him , we find that the agency proved by clear and convincing evidence that it would have terminated the appellant absent his protected disclosure s. McCart hy, 116 M.S.P.R. 594, ¶ 66. NOTICE OF APPEAL RIG HTS9 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate 8 The administrative judge found that the appellant did not identify any other nontenured employees who engaged in similar misconduct who were not terminated. ID at 61. We modify the initial decision to clarify that t he appellant does not have the burden of identifying such employees. Instead, it is the agency’s burden to prove that it woul d have terminated the appellant absent his protected disclosures , and the Board will consider any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated in determining whether the agency has met its burden . Soto , 2022 MSPB 6, ¶¶ 11, 18 . Any error in this respect is harmless because there is no evidence of such employees. See Panter , 22 M.S.P.R. at 282. 9 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 11 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 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 mus t file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Was hington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 12 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/pr obono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 Feder al Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no lat er than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court ‑appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.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 13 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 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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.10 The court of appeals must receive your 10 The ori ginal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction e xpired on December 27, 2017. The All Circuit Review Act, signed in to law by the President on 14 petition for review within 60 days of the date of is suance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court a t the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscour ts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endo rses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. July 7, 2018, perma nently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circui t Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 15 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	CARMICHAEL_JAMES_ANDREW_DC_1221_15_0840_W_1_FINAL_ORDER_1976665.pdf	2022-11-09	null	DC-1221	NP
3,944	https://www.mspb.gov/decisions/nonprecedential/SPALDING_ZERINA_CB_1208_22_0016_U_3_ORDER_ON_STAY_EXTENSION_REQUEST_1976697.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-3 DATE: November 9, 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 to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c). 2 ORDER ON STAY EXTENSION REQUEST ¶1 Pursuant to 5 U.S.C. § 1214 (b)(1)(B), the Office of Special Counsel (OSC) requests a 60 -day 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 det ermines whether to seek corrective action. For the reasons discussed below, OSC ’s request is GRANTED. BACKGROUND ¶2 By order dated July 28, 2022, Member Limon granted OSC ’s initial 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) (U-1 Order on Stay Request) . The initial stay was granted to permit OSC to conduct an investigation into whether the agency ’s proposal to remove Ms. Spalding was the result of a prohibited personnel practice under 5 U.S.C. § 2302 (b)(1)(A). Id., ¶ 6. OSC’s initial stay request was granted through and including September 10, 2022. Id., ¶¶ 1, 7. By order dated September 9, 2022, the Board granted OSC ’s request to extend the stay for 60 days, through and including November 9, 2022, on the same basis as the initial stay request . Speci al Counsel ex rel. Zerina Spalding v. Department of the Treasury , MSPB Docket No. CB -1208 -22-0016 -U-2, Order on Stay Request , ¶¶ 4 n.2, 6 (Sept. 9 , 2022) (U-2 Order on Stay Request) . ¶3 On October 25 , 2022, OSC filed a second request t o extend the stay for an additional 60 days. Special Counsel ex rel. Zerina Spalding v. Department of the Treasury , MSPB Docket No. CB -1208 -22-0016 -U-3, Stay Request File (U -3 SRF), Tab 1. The agency filed a response in opposition to OSC ’s request. U-3 SRF, Tab 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 Transportat ion, 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 unreasonab le. Id. at 158. The Board may grant the extension for any period that it considers appropriate . 5 U.S.C. § 1214 (b)(1)(B) (i); Special Counsel ex rel. Waddell v. Department of Justice , 105 M.S.P.R. 208 , ¶ 3 (2007) . ¶5 In requesting its second 60-day extension of the existing stay, OSC asserts that the factual record has not s ubstantially changed and that it continues to have reasonable grounds to believe that the agency ’s proposed removal is a prohibited personnel practice in violation of 5 U.S.C. § 2302 (b)(1)(A) and ( b)(8) . U-3 SRF, Tab 1 at 4, 6. OSC states that it has used the stay period thus far to conduct interviews and review the information it has obtained from the agency, and that it has scheduled an additional interview for a future date with a witness who was previously unavailable. Id. at 8. OSC also asserts that it has submitted a second request for information from the agency and a request for information from the Department of the Treasury ’s Office of the Inspector General (OIG), and that the additional time will allow the agency to provide responses to its requests and for OSC to review those responses . Id. at 8. Additionally , OSC states that the agency produced its final and largest production of documents in response to its first request f or information on October 1, 2022, totaling over 8,000 documents, and that it needs additional time to finish reviewing these documents. Id. at 4, 8. ¶6 Finally, OSC asserts that , based on the evidence it has obtained since the issuance of the initial stay and the stay extension, it now has reasonable grounds to believe that Ms. Spalding engaged in protected activity under 5 U.S.C. 4 § 2302 (b)(9)(C) when she sent the December 2019 anonymous email to t he agency’s Anti -Harassment Coordinator, and the agency committed a prohibited personnel practice when it proposed her removal in retaliation for that protected activity. Id. at 4, 6 -7. Consequently, OSC states that it also intends to use the additional time to review the evidence it has and will obtain in relation to this claim. Id. at 7-8. ¶7 The agency opposes OSC ’s request for an extension, arguing that granting the extension would be unreasonable and inappropriate under the circumstances. U-3 SRF, T ab 2 at 2. Regarding the length of time that the proposed action has already been stayed, t he agency argues that the statutory guidelines for OSC investigations generally require OSC to make a determination concerning whether a prohibited personnel practice has been committed within 8 months, and OSC has already been in possession of the core documents related to Ms. Spalding ’s proposed removal for over 7 months . Id. at 3-9. The agency also argues that OSC’s most recent request for information is duplicative, noting that OSC is again requesting materials that are already in its possession. Id. at 3 n.3. ¶8 Additiona lly, t he agency asserts that OSC has mischaracterized the basis for the OIG’s investigation into the anonymous email and reiterates its objection to OSC’s request to investigate Ms. Spalding ’s proposed removal as retaliation for protected whistleblowing ac tivity under 5 U.S.C. § 2302 (b)(8) . Id. at 2 n.1, 4 -6 & n.5. To that end, the agency argues that OSC has inappropriately expanded its investigation beyond the scope of the stay the Board granted by turning an otherwise “straight -forward Title VII retaliation claim ” into a “wide -ranging, systemic review of actions taken by the Agency in various personnel matters. ” Id. at 8-10. Finally, the agency objects to OSC ’s request to expand the scope of its investigation to include a claim that the agency proposed Ms. Spalding ’s removal in retaliation for her protected whistleblowing activity under 5 U.S.C. § 2302 (b)(9)(C), arguing that OSC has no t provided any evidence to support its request to extend the stay to investigate this claim. Id. at 12 -13. 5 ¶9 As noted in the Board ’s previous order granting the initial stay in this case, the Board has found that OSC alleged in its July 25, 2022 stay reques t that it has reasonable grounds to believe that Ms. Spalding ’s proposed removal was the result of a prohibited personnel practice in violation of 5 U.S.C. § 2302 (b)(1)(A). U-1 Order on Stay Reque st, ¶ 6. Viewing the record in the light most favorable to OSC , an extension of the stay is not clearly unreasonable to allow OSC time to continue its investigation . Special Counsel v. Small Business Administration , 73 M.S.P.R. 12 , 13-14 (1997). As previously set forth, the record supporting OSC’s stay extension request does not appear to have changed materially since the initial s tay was granted, and so we find it appropriate to extend the stay.2 See Waddell , 103 M.S.P.R. 372 , ¶ 5 . ¶10 We also acknowledge the agency’s stated concerns about the amount of time the case has taken thus far.3 A separate determination must be made on the 2 Regarding OSC ’s request to expand the scope of its investigation to include whether the agency proposed Ms. Spalding ’s removal in retaliation for her protected whistleblowing activity under 5 U.S.C. § 2302 (b)(9)(C), as was the case with OSC ’s request to investigate allega tions of wrongdoing under 5 U.S.C. § 2302 (b)(8), we need not consider whether to grant the stay on this alternative basis because we are granting the stay based on alleged prohibited personnel prac tices under 5 U.S.C. § 2302 (b)(1)(A ). U-1 Order on Stay Request, ¶ 6 n.2; U -2 Order on Stay Request, ¶ 7 n.2; see, e.g., Special Counsel v. Department of Transportation , 70 M.S.P.R. 520 , 522 n.* (1996) (finding it unnecessary to consider an alleged prohibited personnel practice claim under 5 U.S.C. § 2302 (b)(11) because there was sufficient support for granting the stay based on the 5 U.S.C. § 2302 (b)(8) claim). The initial stay and the st ay extensions are limited to OSC ’s request to investiga te potential prohibited personnel practices under 5 U.S.C. § 2302 (b)(1)(A) . See, e.g., Special Counsel v. U.S. Fish & Wildlife Service , 64 M.S.P.R. 413 , 414 -15 (1994) (denying OSC ’s stay extension request when it asserted that newly discovered evidence could support a ne w potential violation that could change the course of action taken by OSC, and OSC stated that it required addition time to determine whether further action was warranted). 3 Regarding the agency ’s specific argument that the statutory guidelines indicate t hat OSC should make a determination concerning whether to pursue a prohibited personnel practices claim within 8 months, although the agency cites 5 U.S.C. § 2302 (b)(2)(A) to support its argument, the statutory provision the agency appears to be relying on is 5 U.S.C. § 1214 (b)(2)(A)(i). U-3 SRF, Tab 2 at 8. That provision states as follows: “[e]xcept as provided under clause (ii), no late r than 240 days after the date of receiving 6 length of a requested stay, and the Board may extend the period of a stay for any period it considers appropriate. Special Counse l ex rel. Meyers v. Department of Housing & Urban Development , 111 M.S.P.R. 48, ¶ 17 (2009) ; Waddell , 105 M.S.P.R. 208 , ¶ 5 . As w e previous ly noted , the Board has recognized that it is the intent of Congress that stays not be extended for prolonged periods of time , and Congress has encouraged the Board to press OSC to present any corrective action case in a timely manner . U-2 Order on Stay Request, ¶ 9; see Special Counsel v. Department of the Treasury , 71 M.S.P.R. 419 , 421 -22 (1996) (citing Special Counsel v. Federal Emergency Management Agency , 44 M.S.P.R. 544, 546-47 (1990) ). However, the fact that OSC recently received over 8,000 documents to review , is awaiting responses to its recently issued requests for information , and has scheduled an additional interview with a relevant witness , are factor s in favor of granting its request for an extension of the stay. See Special Counsel ex rel. Tines v. Department of Veterans Affairs , 98 M.S.P.R. 510 , ¶¶ 4 -6 (2005) (granting a request for a 70 -day extension of a stay whe n OSC recen tly received 600 pages of documents to review from the agency and needed to conduct witness interviews). an allegation of a prohibited personnel practice under paragraph (1), the Special Counsel shall make a determination whether there are reasonable grounds to believe that a prohibited personnel practice has occurr ed, exists, or is to be taken. ” However, this provision addresses the timeline for OSC ’s investigation of allegations of prohibited personnel practices submitted by complainants to OSC under 5 U.S .C. § 1214 (a)(1)(A). The provisions governing OSC’s requests for stays of personnel actions are set forth in 5 U.S.C. § 1214 (b)(1)(A) -(E) and specify that the Board may extend the period of any st ay on a personnel action granted to OSC under subparagraph (A) “for any period the Board considers appropriate. ” 5 U.S.C. § 1214 (b)(1)(B)(i ). Additionally, although the agency repeatedly references the fact that OSC has been in possession of the “core documents ” related to Ms. Spalding ’s proposed removal for more than 7 months, OSC did not first request a stay of the proposed removal in this case until July 2 5, 2022, so only 10 7 days will have elapsed since OSC formally initiated its investigation as of the date the stay extension is currently set to expire. Special Counsel ex rel. Zerina Spalding v. Department of the Treasury , MSPB Docket N o. CB -1208 -22-0016 -U-1, Stay Request File , Tab 1 at 5, 19. 7 ¶11 Regarding the amount of time that OSC has requested for its extension, we have considered , sua sponte, whether we should grant an extension for some amount of time less than the 60 days OSC requested , taking into consideration the fact that the stay extension request is being approved on a narrower basis than that which OSC requested the extension, i.e., only in order for OSC to complete its existing investigation into potential prohibited personnel practices under 5 U.S.C. § 2302 (b)(1)(A). However, we have decided to grant the extension for the full 60 days requested at this time . Relevant t o this determination is the fact that much of the 60 -day stay extension period will take place during the fall and winter holiday s, when it may be difficult to schedule witness interviews and OSC and agency personnel may be on scheduled leave, which may im pact OSC ’s ability to complete its investigation. See Special Counsel v. Department of Transportation , 59 M.S. P.R. 559 , 560 (1993) (finding that a 90 -day extension of a stay was appropriate because of, inter alia, the difficulty inherent in scheduling investigatory interviews during the holiday season). For these reasons, and viewing the record in the light most favorable to OSC, we find that OSC has shown reasonable cause to justify extending the stay an additional 60 days. ORDER ¶12 Pursuant to 5 U.S.C. § 1214 (b)(1)(B), a 60 -day extension of the stay is hereby GRANTED, and it is ORDERED as follows: (1) The stay issued on July 28, 2022, is extended through and including January 8, 2023 , on the terms and conditions set forth in that Order; (2) The agency shall not effect any changes in Ms. Spalding ’s duties or responsibilities that are inconsistent with her salary or grade level, or impose upon her any requirement which is not required of other employees of comparable position, salary, or grade level; 8 (3) Within 5 working days of this Order, the agency shall submit evidence to the Clerk of the Board showing that it has complied with this Order; (4) Any request for an extension of this stay pursuant to 5 U.S.C. § 1214 (b)(1)(B), as amended by Pub. L. No. 115 -42,4 and 5 C.F.R. § 1201.136 (b) must be received by the Clerk of the Board and the agency, together with any further evidentiary support, on or before December 24, 2022 ; 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 December 31, 202 2. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board 4 As passed by the House of Representatives on May 25, 2017, passed by the Senate on June 14, 2017, and signed into law on June 27, 2017.	SPALDING_ZERINA_CB_1208_22_0016_U_3_ORDER_ON_STAY_EXTENSION_REQUEST_1976697.pdf	2022-11-09	null	CB-1208	NP
3,945	https://www.mspb.gov/decisions/nonprecedential/BROADHEAD_BRIAN_DC_0432_17_0126_I_1_FINAL_ORDER_1976715.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD BRIAN BROADHEAD, Appellant, v. DEPARTMENT OF COMMER CE, Agency. DOCKET NUMBER DC-0432 -17-0126 -I-1 DATE: November 9, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Kristen Farr , Esquire, and Rosemary Dett ling, Esquire, Washington, D.C., for the appellant. William Horrigan , Esquire, Alexandria, Virginia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition f or revie w of the initial decision, which dismissed his appeal as untimely filed with out a showing of good cause for the delay . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous fin dings 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, despite the petitioner ’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal , we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board ’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 The agency imposed the appellant ’s removal, effective September 16, 2016. Initial Appeal File (IAF), Tab 1 at 30. In the removal letter, the agency informed him that if he wished to file a Board appeal, he must do so within 30 days of the effective date of the removal, or within 30 days of his receipt of th e agency ’s decision, whichever wa s later. Id. at 32. The appellant electronically filed the instant appeal on Nove mber 15, 2016 , acknowledged that it was untimely filed, and asserted that it should be accepted for good cause shown on the basis of a miscommunication with his attorney . Id. at 18, 34 . In an initial decision, t he administrative judge dismissed the appea l as untimely filed without good cause shown for the delay. IAF, Tab 8, Initial Decision (ID ). The appellant has filed a petition for review , and the agency has filed a response in opposition to the appellant ’s petition. Petition for Review (PFR) File, Tabs 1, 3. ¶3 Here, t he appeal would have been due 30 days after the September 16, 2016 effective date of the removal, or on October 16, 2016. 5 C.F.R. § 1201.22 (b). However, because this date fell on a Sunday, the appeal was due on the next business day, which was October 17, 2016. 5 C.F.R. § 1201.23 . The appellant did not electronically file his appeal until November 15, 2016. IAF, Tab 1. Thus, 3 as the administrative judge found, the appeal was 29 days late. ID at 3-4. The appellant does not challenge this finding on review . PFR File, Tab 1 at 5 . Instead , he asserts that the administrative judge should have found that he demonstrated good cause for his delayed filing . Id. at 7 -11. ¶4 To determine whether an appellant has shown good cause for his untimeliness , the Board will consider the length of the delay, the reasonableness of his excuse and his showing of due d iligence, whether he is proceeding pro se, and whether he has presented evidence of the existence of circumstances beyond his control that affected his ability to comply with the time limits or of unavoidable casualty or misfortune which similarly shows a causal relationship to his inability to timely file his petition. Moorman v. Department of the Army , 68 M.S.P.R. 60 , 62-63 (199 5), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table). In determining whether the appellant has shown good cause, the Board has long held that the appellant is responsible for th e failure of his representative to submit a timely filing . White v. Department of Justice , 103 M.S.P.R. 312 , ¶ 12 (2006) , aff’d , 230 F. App’x 976 (Fed. Cir. 2007) . ¶5 The administrative judge found that the appel lant’s argument regarding a miscommunication with his attorney s did not constitute good cause for waiving the filing deadline because the agency informed the appellant of the filing deadline, it was incumbent upon him to monitor the appeal process, and the re was no indication from his attorneys that his appeal had been filed. ID at 6 -7. The appellant asserts that he acted with due diligence by pointing to the following unrebutted evidence: (1) on October 11, 2016, six days before his appeal was due, he p rovided his removal letter to his attorney; (2) upon providing the removal letter, he asked the attorney if he needed to do anything else, and she told him that he did not; and (3) it did not become apparent to him that the appeal had not been filed until after the attorney contacted him on November 9, 2016 , regarding filing a designation of representative form . PFR File, Tab 1 at 5, 7; IAF, Tab 6 at 8-11. 4 ¶6 An appellant has a personal responsibility to monitor the progress of his appeal at all times and n ot to leave the matter entirely in the hands of his representative. White , 103 M.S.P.R. 312 , ¶ 12. Thus, absent a specific showi ng that the appellant actively monitored the progress of his appeal but his representative thwarted his diligent efforts to pursue the appeal, the appellant cannot blame his representative ’s alleged negligence in seeking to excuse a filing delay. Id. ¶7 The agency notified the appellant of the filing deadline , and he does not dispute that he was aware of the deadline. PFR File, Tab 1 at 5; IAF, Tab 1 at 32. The record also reflects that the appellant did not actively monitor his appeal. In his affidavit, the appellant indicated that when he emailed his attorney on October 11, 2016, he was under the impression that she would file his appeal by the deadline (October 17, 2016) . IAF, Tab 6 at 8. He further stated that he did not contact his attorney s or inq uire about the status of his appeal by any means until he responded to an email from one of the attorneys on November 10, 2016 . Id. Under these circumstances , his miscommunication with his attorneys does not constitute good cause for the filing delay .2 See White , 103 M.S.P.R. 312 , ¶¶ 10, 13 (finding no good cause shown for the 5 -day delay in fi ling the appeal because the appellant did not show that he tried to contact his representative before the filing deadline or otherwise make any effort to ensure that his appeal was filed on time, he did not contact the Board to request an extension , and he did not explain why his representati ve’s illness prevented him from filing on time); Strong v. Department of the Navy , 86 M.S.P.R. 243 , ¶¶ 4, 11-12 (2000) (finding that the appellant did not es tablish good cause for the 12 -day delay in filing his petition for review because he initially discussed filing the petition with his attorney, he 2 As the administrative judge stated, even though the appellant ’s representative s appear to claim responsibility for the untimely filing, this does not constitute good cause because the appellant is personally responsible for prosecuting his appeal. ID at 7; see Retzler v. Department of the Navy , 114 M.S.P.R. 361 , ¶ 5 (2010). 5 contacted the attorney’s office to see if he needed to do anything else, and he made no further attempts to contact his attorney before the filing deadline) . ¶8 We also agree with the administrative judge that the 29-day delay is significant, and the appellant was not proceeding pro se, which are factors weigh ing against a finding of good ca use for the delay. ID at 7 ; see Laboy v. U.S. Postal Service , 103 M.S.P.R. 570, ¶ 9 (2006) (finding that the appellant failed to establish good cause for the untimely filing of her petition for revie w by almost 1 month because the delay was not minimal, s he was represented by an attorney , and she did not explain how her attorney’s injury and recuperation prevented her from requesting an extension); De Vaughn v. U.S. Postal Service , 96 M.S.P.R. 427, ¶¶ 6, 8 (2004) ( concluding that the appellant did not show good cause for the over 1 -month delay in filing his petition for review in part because he was represented on revie w, even though he was pro se below ); Edeburn v. U.S. Postal Service , 95 M.S.P.R. 486 , ¶¶ 15-16 (2004) (finding that the appellant did not demonstrate good cause for the 8 -day delay in filing her appeal when, among other things, she was represented and received ample notice of the time requirements for filing an appeal in the agency’s decision letter ). Thus, we agree with the adminis trative judge’s decision that the appellant has not demonstrated good cause for his untimely 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 summa ry of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most 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 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 petiti on for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional informat ion about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Pr actice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation 7 for Merit Systems Protection Board appellants before the 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 rev iew of cases involving a claim of discrimination . This option applies to you only if you have claimed that 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 rep resentative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any req uirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excludi ng all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file 8 with the EEOC no later than 30 calendar days after your represen tative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submi t a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s dispositi on 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 A ppeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 9 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 M adison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners an d Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will a ccept 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	BROADHEAD_BRIAN_DC_0432_17_0126_I_1_FINAL_ORDER_1976715.pdf	2022-11-09	null	DC-0432	NP
3,946	https://www.mspb.gov/decisions/nonprecedential/TULLIS_PHILIP_W_DE_3330_17_0049_I_1_FINAL_ORDER_1976724.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD PHILIP W. TULLIS, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER DE-3330 -17-0049 -I-11 DATE: November 9, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL2 Philip W. Tullis , Helena, Montana , pro se . Robert C. Burlison, III , Esq uire, San Antonio, Texas, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member 1 The above -referenced docket number has been designated as the lead docket number in this matter and has been joined with the following docket numbers : DE-3330 -17- 0050 -I-1, DE-3330 -17-0051 -I-1, DE-3330 -17-0052 -I-1, DE-3330 -17-0053-I-1, DE-3330 -17-0054 -I-1, DE-3330 -17-0055 -I-1, DE-3330 -17-0056 -I-1, DE-3330 -17-0057 - I-1, DE-3330 -17-0058 -I-1, DE-3330 -17-0059 -I-1, DE-3330 -17-0060 -I-1, and DE-3330 - 17-0061 -I-1. 2 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Part ies 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 Orde r has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which denied his request for corrective action in connection with his appeal s under the Veterans Employment Opportunities Act (VEOA) . 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 . Ex cept as expressly MODIFIED to address whether any complaints the appellant allegedly filed with the Office of Special Counsel (OSC) constituted defective pleadings filed during the statutory 60 -day time period so as to support the application of equitable tolling, we AFFIRM the initial decision. BACKGROUND ¶2 On July 29, 2016, the appellant, a 10 -point veteran, filed a number of VEOA complaint s with the Department of Labor (DOL) challenging his nonselection for 12 positions with the agency . Initial Appeal Fil e (IAF), Tab 1 at 30. On September 26, 2016, DOL closed the complaint s on the base s that the appellant had not filed hi s claim s within the VEOA statutory deadline of 60 days from the alleged violation s, 5 U.S.C. § 3330a (a)(2)(A), and h ad not provide d any additional information to refute this determination or a ny reason for waiving the 3 deadline. Id. at 32. The appellant then filed 13 VEOA appeals3 with the Board , which the administrative judge joined under this lead appeal.4 IAF, Tab 2. The appellant requested a hearing. IAF, Tab 1 at 2. The administrative judge issued an Order on VEOA Jurisdiction and Notice of Proof Requirements , which included information relating to the time limits for filing complaints with DOL . IAF, Tab 3. After considering the parties’ submissions, IAF, Tabs 10-24, the administrative judge found that the appellant established the Board’s jurisdiction over all the appeals , but that there appeared to be no dispute tha t he did not timely file his complaints with DOL . The administrative judge referred to his earlier order in which he explained the principle of equitable tolling and its potential applicability to DOL’s statutory deadline , along with the parties’ burdens of proof as to that matter . Subsequently, h aving received no information regarding the applicability of equitable tolling, the administrative judge afforded the appellant a further opportunity to address the issue, IAF, Tab 26 , and he did reply, IAF, Tab 27, but after finding no genuine issues of fact in the appeal, the administrative judge set a d ate for the close of the record, IAF, Tab 28. B oth parties responded. IAF, Tabs 29 -31. 3 The administrative judge noted the discrepancy between the 12 VEOA violations in the appellant’s complaint s to DOL and the 13 appeals he filed with the Board but found that he did not, in his filings, clearly correlate the vacancies at issue to the DOL complaint s and the Board appeals. IAF, Tab 8 at 30. Because the administrative judge ultimately found no basis upon which to grant corrective action, he determined that the numerical discrepancy did not change the outcome of the appeals and, for the sake o f judicial economy, made no further attempt to reconcile the discrepancy. IAF, Tab 32, Initial Decision at 3. The appellant has not, on petition for review, raised any specific argument in this regard, Petition for Review File, Tab 1, and therefore we wi ll not address the matter further. 4 The appellant also claimed, in connection with these same nonselections, that the agency violated his rights under the Uniformed Services Employment and Reemployment Rights Act. The administrative judge docketed these appeals separately, but the appellant subsequently withdrew them. Tullis v. Department of Veterans Affairs , MSPB Docket No. DE -4324 -17-0182 -I-1, Initial Decision at 2 (Mar. 10, 2017). He did not file a petition for review of that initial decision , and it became the Board’s final decision on April 14, 2017. 4 ¶3 Thereafter, the administrative judge issued an initial decision on the w ritten record in which he found , based on evidence submitted by the appellant, that the majority of the alleged violations of his veterans’ preference rights occurred in 2015, with the latest allegedly occurring on May 15, 201 6, all more than 60 days befor e July 29, 2016, when he filed his DOL complaints. IAF, Tab 3 2, Initial Decision (ID) at 5 -6. The administrative judge then address ed whether the appellant had met his burden to show that the 60 -day time limit should be equitably tolled , first considerin g his claim that , as to three of the nonselections, he mistakenly filed complaints with OSC. The administrative judge found, however, that the appellant did not thereby allege that he was “induced or tricked” by the agency into allowing the filing deadlin e to pass. ID at 7. The administrative judge then considered the appellant’s claim that his immediate supervisor “threatened” to terminate him “if he filed during his ‘probationary’ period,” and th at th erefore he was justified in delaying filing the VEOA complaints until h e alleged ly resigned involuntar ily in July 2016. The administrative judge found no basis to interpret the principles and purposes of the equitable tolling so as to permit such delay , ID at 7 -9, and a ccordingly denied the appellant’s req uest for corrective action. ID at 2, 10. ¶4 The appellant has filed a petition for review, Petition for Review (PFR) File, Tab 1, to which the agency has responded in opposition. PFR File, Tab 3. ANALYSIS ¶5 In Irwin v. Department of Veterans Affairs , 498 U.S. 89 (1990), the Supreme C ourt addressed the equitable tolling of statutory time limits in lawsuits against the Government. As between priva te litigants, t he Court acknowledged extending equitable relief only sparingly, allowing equitable tolling in situations “where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary’s misconduct in allowing the filing deadline 5 to pass.” Id. at 96. The Court determined that “[b]ecause the time limits imposed by Congress in a suit against the Government involve a waiver of so vereign immunity, it is evident that no more favorable tolling doctrine may be employed against the Government than is employed in suits between private litigants.” Id. The Board has applied these criteria in adjudicating cases whe n, as here, an appellant fails to meet the 60-day filing deadline set forth at 5 U.S.C. § 3330a (a)(2)(a). See, e.g. , Gingery v. Office of Personnel Management , 119 M.S.P.R. 43 , ¶¶ 17-18 (2012); Roesel v. Peace Corps , 111 M.S.P.R. 366, ¶ 8 (2009); Brown v. U.S. Postal Service , 110 M.S.P.R. 381 , ¶¶ 10-14 (2009); Garcia v. Department of Agriculture , 110 M.S.P.R. 371 , ¶ 6 (2009). ¶6 On review, the appellant challenges the admin istrative judge’s finding that he failed to meet either criterion . PFR File, Tab 1 at 11 -13, 15 . He first argues , as he did below, that since, in three of his appeals, he erroneously filed complaint s with OSC, he thereby “filed a defective pleading durin g the statutory period. ” Id. at 11, 13, 15. In examining this claim, the administrative judge considered only whether the mistakenly filed complaints constituted an allegation by the appellant that he was induced or tricked by the agency, concluding that it did not because he never alleged that anyone at the agency sent him to OSC instead of DOL and that , in any event, ignorance of one’s rights is not covered by equitable tolling. ID at 7. The appellant has not specifically challenged this finding and w e find no basis upon which to disturb it. Williams v. Department of the Navy , 94 M.S.P.R. 400, ¶ 20 (2003) (finding that an agency’s failure to advise an individual of appeal rights does not equate with inducing or tricking that individual into allowing a filing deadline to pass) , aff’d , 89 F. App’x 714 (Fed. Cir. 2004) . ¶7 The administrative judge did not, however, consider whether any complaints the appellant allegedly filed with OSC constitute d defective pleadings filed during the statutory 60 -day time period so as to support the application of equitable tolling. We therefore do so now. The appellant argued incongruously 6 below that h e filed complaints with OSC on November 19, 2015, challenging alleged violations of veterans’ preference that did not occur until January 5, 2016 , and May 15, 2016. IAF, Tab 8 at 30. In any event, he did not submit below any such complai nts to establish when they were in fact filed or whether they attempted to raise veterans’ preference claim s. Brown , 110 M.S.P.R. 381, ¶ 13. We find, therefore, that the re is no evidence that the appellant filed a defective pleading within the statutory 60 -day time period. ¶8 The appellant also disputes on review the administrative judge’s finding that he did not establish that he was induced by the agency’s misconduct to delay filing his VEOA complaints. PFR File, Tab 1 at 11-13, 15. The administrative judge considered the appellant’s claim that his immediate supervisor ”threatened” him with termination if he filed a VEOA complaint and that therefo re he was justified in waiting until after he had resigned to file his VEOA claims. Relying on several Federal court decisions, the administrative judge found that any such threat did not serve to equitably toll the statutory filing deadline. Beckel v. Wal-Mart Associates , Inc., 301 F.3d 621 , 624 (7 th Cir. 2002) (holding that applying equitable estoppel to a threat to fire an employee if he sued would “distort the doctrine of equitable estoppel” as well as “circumvent the limitations that Title VII imposes on suits for retaliation ”); Carter v. West Publishing Co. , 225 F.3d 1258 , 1266 (11 th Cir. 2000) (holding that equitable estoppel did not apply where plaintiff waited to b ring an Equal Employment Opportunity Commission charge out of fear of retaliation for doing so).5 The administrative judge reasoned that the appellant also could have been fired after his probationary period, and that to allow him to wait until he was no longer an employee to file a VEOA complaint would mean that he could possibl y wait years to file, a n action 5 Similar to equitable tolling, equitable estoppel i s a principle that applies when a party makes false representations to induce another party to act and that party reasonably relies on the misrepresen tations to his or her detriment. Blaha v. Office of Personnel Management , 108 M.S.P.R. 21 , ¶ 9 (2007 ). 7 that would not be in accordance with the principles and purpose of equitable tolling. ID at 9. ¶9 The appellant argues on review that he was not, in fact, a probationary employee but rather had 6 years of Federal service.6 PFR File, Tab 1 at 13. Regardless of his status, however, even if his allegation that he was apprehensive about possible retaliation because he was threatened with removal is true, it does not reflect that he was thereby tricked or induced into allowing the filing deadline to pas s and is not a ground for equitable tolling of that deadline. Beckel , 301 F.3d at 626; Carter , 225 F.3d at 1266. ¶10 On review, the appellant argues that he was denied a hearing at which he could have provided witness testimony regarding his VEOA claims and the propriety of his nonselections. PFR File, Tab 1 at 9-11. The Board has held, however, that it has the authority to decide a VEOA appeal on the merits, without a hearing, when there is no genuine dispute of material fact. Waters -Lindo v. Department of Defense , 112 M.S.P.R. 1 , ¶ 5 (2009) . The matter about which the administrative judge properly found no genuine issue of fact was the applicability of equitable tolling , IAF, Tab 28 , and although that is a determination on the merits, Garcia , 110 M.S.P .R. 371 , ¶ 13, it precludes any consideration of the reasons for the appellant ’s nonselections. Therefore , we need not consider the appellant ’s claim s in this regard . ¶11 The appellant also argues on review that the administrative judge abused his discretion in not providing any warning as to the closing of the record. PFR File, Tab 1 at 11, 15. On the contrary, the record reflects that the administrative judge issued an Order Closing the Record on January 18, 2017, affording the parti es 6 With his petition for review, the appellant submitted a copy of a Standard Form 50 showing that he achieved career tenure on February 13, 2 015. PFR File, Tab 1 at 19. Under 5 C.F.R. § 1201.115 , the Board generally will not consider evidence submitted for the first time with the petition for review absent a showing that it was unavailable before the reco rd was closed despite the party’ s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980). The appellant has made no such showing. 8 until January 23, 2017 , to submit additional evidence and argument , IAF, Tab 28 , and that both the appellant and th e agency responded, IAF, Tabs 29 -31. Therefore , we find that the appellant has not shown any abuse of discretion by the administrative ju dge.7 ¶12 With his petition, the appellant submitted a number of documents , some of which were a part of the record below. PFR File, Tab 1 at 20 -26; IAF, Tab 27 at 21-27. Evidence that is already a part of the record is not new , Meier v. Department of the In terior , 3 M.S.P.R. 247 , 256 (1980) , and therefore , we have not considered these documents . The remaining documents all predate the close of the reco rd below.8 PFR File, Tab 1 at 27 -30; IAF, Tab 28 . In the absence of any showing by the appellant that these documents were unavailable before the record was closed despite his due diligenc e, we have not considered them. Avansino , 3 M.S.P.R. at 214. NOTICE OF APPEAL RIG HTS9 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate 7 The appellant also argues on review that he was subjected to harassment and that his July 26, 2016 resignation was involuntary . PFR File, Tab 1 at 4 -6. That matter is not a part of the instant VEOA appeal. Moreover, the appellant earlier filed an appeal challenging his resignation as involuntary, but he withdrew that appeal, re sulting in an initial decision dismissing it with prejudice. Tullis v. Department of Veterans Affairs , MSPB Docket No. D E-0752 -17-0040 -I-2, Initial Decision at 1 -2 (Mar. 10, 2017). That decision became the Board’s final decision on April 14, 2017, when n either party filed a petition for review . 8 These documents include some correspondence from OSC, PFR File, Tab 1 at 27 -29, and a declaration the appellant prepared and signed on November 14, 2016. Id. at 30-31. 9 Since the issuance of the initial decisio n in this 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 forum with which to file. 5 U.S.C. § 7703 (b). Altho ugh we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to f ile within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a pet ition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1) (A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C . 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained w ithin the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 10 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for in formation regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that 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 representativ e 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 o f prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.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 11 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 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.10 The court of appeals must receive your 10 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on 12 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” whi ch is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will ac cept representation in a given case. July 7, 201 8, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 13 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http:// www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	TULLIS_PHILIP_W_DE_3330_17_0049_I_1_FINAL_ORDER_1976724.pdf	2022-11-09	null	DE-3330	NP
3,947	https://www.mspb.gov/decisions/nonprecedential/WILLIAMS_ANTONIA_MARIE_AT_0752_16_0629_I_1_FINAL_ORDER_1976810.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ANTONIA MARIE WILLIA MS, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER AT-0752 -16-0629 -I-1 DATE: November 9, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Antonia Marie Williams , Lake City, Florida, pro se. Joved Gonzalez -Rivera , San Juan, Puerto Rico, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Memb er FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her appeal as settled . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due dilig ence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 The appellant filed a Board appeal challenging her removal from her position as a Nursing Assistant with t he agency’s Veterans Health Administration. Initial Appeal File (IAF), Tab 1. While the appeal was pending, the parties entered into a settlement agreement resolving the appellant’s Board appeal . IAF , Tab 15. Pursuant to the terms of the settlement agr eement, in pertinent part, the agency agreed to demote and reassign the appellant to a Food Service Worker position upon her being determined physically qualified . Id. at 7, ¶¶ 2b, 3b. The agreement further specified that if the appellant was unable to meet the physical requirements of the position as determined by a physical examination, she retained the right to reinstate her Board appeal of her removal . Id. at 7, ¶ 3c. The agreement indicated that reinstat ing the appellant’s appeal after she failed to meet the physical qualifications of the position would not constitute a breach of the settlement agreement. Id. ¶3 After finding that the Board had jurisdic tion over the appellant’s appeal and determining that the settlement agreement was voluntarily e ntered into, understood by the parties, and lawful on its face, the administrative judge issued 3 an initial decision dismissing the appellant’s appeal in light of her request to withdraw it pursuant to the settlement agreement . IAF, Tab 16, Initial Decisio n (ID). The administrative judge entered the settlement agreement into the record for enforcement purposes. ID at 2. DISCUSSION OF ARGUME NTS ON REVIEW ¶4 The appellant has filed a petition for review of the initial decision, claiming that the settlement a greement is invalid because the agency misrepresented the extent of the physical requirements of the Food Service Worker position. Petition for Review (PFR) File, Tab 1 at 4 -5. Additionally, she claims that the agency breached the agreement when it refus ed to offer her the Food Service Worker position after she failed to pass a preemployment physical examination. Id. Finally, she alleges that the agency breached a previous verbal agreement to hire her for the Food Service Worker position without requiri ng that she complete a preemployment physical examination. Id. The agency filed a response to the petition for review, arguing that the settlement agreement was lawful on its face, that the appellant represented that she understood the agreement and ente red into it voluntarily, and that her appeal was properly dismissed as withdrawn on the basis of the lawfully executed settlement agreement. PFR File, Tab 6 at 6 -7. ¶5 A party may challenge the validity of a settlement agreement if she believes that it is u nlawful, involuntary, or the result of fraud or mutual mistake. Hinton v. Department of Veterans Affairs , 119 M.S.P.R. 129 , ¶ 4 (2013). A challenge to the validi ty of the settlement agreement must be filed , as it was here, as a petition for review of the initial decision . See Weldon v. Department of Veterans Affairs , 119 M.S.P.R. 478 , ¶ 5 (2013 ) (finding the proper method to attack the validity of a settlement agreement is a petition for review of the initial decision that dismissed the appeal based on the settlement agreement). To establish that a settlement wa s fraudulent as a result of coercion or duress, a party must prove that she involuntarily accepted the other party’s terms, that 4 circumstances permitted no other alternative, and that such circumstan ces were the result of t he other party’s coercive acts. Hinton , 119 M.S.P.R. 129 , ¶ 4. The party challenging the validity of the settlement agreement bears a “heavy burden.” Asberry v. U.S. Postal Service , 692 F.2d 1378 , 1380 (Fed. Cir. 1982) ; Hinton , 119 M.S.P.R. 129 , ¶ 4. Additionally, a n appellant’s post -settlement remorse or change of heart cannot serve as a basis for setting asi de a valid settlem ent agreement. Hinton , 119 M.S.P.R. 129 , ¶ 4; Henson v. Department of the Treasury , 86 M.S.P.R. 221 , ¶ 10 (2000). ¶6 The appellant states that when the settlement agreement was negotiated , agency officials led her to believe that a relatively small number of the job d uties for the Food Service Worker position would be physically demanding. PFR File, Tab 1 at 4 -5. Because she believed that she could complete the requirements of the position , she agreed to complete the physical examination as a term of the agreement . Id. However, she claims that, when she underwent the physical examination, the duties she was presented with at that time were more physically demanding than she previously was led to believe , resulting in her failing to meet the physical requirements and failing the physical examination . Id. As such, the appellant appears to argue that the agency engaged in fraud or misre presentation by misleading her about the physical expectations of the Food Service Worker position . Id. ¶7 In construing a settlement agreement, the Board will first consider the terms of the agreement itself, and will only examine extrinsic evidence if the terms of the agreement are ambiguous, meaning they are susceptible to more than one reasonable interpretation. Harris v. Department of Veterans Affairs , 99 M.S.P.R. 609, ¶ 4 (2005). The settlement agreement does not mention the job duties of the Food Service Worker position , and does not condition acceptance of the agreement on the appellant’s complet ing any specifically described duties. Instead, the agreement states only that the appellant would be reinstated to the Food Service Worker position after meetin g the physical qualification standards 5 for the position, based on completi ng a physical evaluation. IAF, Tab 15 at 7, ¶ 3b. A position description was not entered as an exhibit as a part of the negotiated settlement agreement , and the physical qualificat ion standards were not included anywhere else in the record .2 Thus, even if the agency presented the appellant with a list of duties during the course of the settlement negotiations that differed from the one s she received when she appeared for her physic al evaluation, we cannot find that that she was the victim of agency misrepresentation or fraud when she voluntarily signed a settlement agreement that did not mention the job duties to be performed in the Food Service Worker position . As such, the appellant’s argument does not warrant setting aside the settlement agreement on the basis of fraud or misrepresentation.3 ¶8 As noted, the settlement agreement provided that, if the appellant was unable to meet the physical requirements of the position as det ermined by a physical examination, she retained the right to reinstate her Board appeal and that such a reinstatement would not constitute a breach of the settlement agreement. IAF, Tab 15 at 7. As of the date of this Order, the appellant has not requeste d 2 The only exhibit referenced in the settlement agreement was a Last Chance Agreement (LCA). IAF, Tab 15 at 7, ¶ 3a; Tab 14 at 9 -12. The LCA similarly does not mention the specific duties of the Food Service Worker position. Id. 3 To the extent the appellant is arguing that she misunderstood the scope or meaning of the terms of the settlement agreement , such a unilateral mistake also does not provide a basis f or inv alidating the agreement. See Washington v. Department of the Navy , 101 M.S.P.R. 258 , ¶ 18 (2006) (noting that an appellant’s vo luntary acceptance of a settlement agreement of which she misunderstood the consequences of accepting the settlement would not be a basis for setting aside the settlement). Concerning the appellant’s claim that the agency breached the terms of the settlem ent agreement by requiring her to undergo a physical evaluation as a condition of reinstatement to the Food Service Worker position, and declining to offer her that position after she failed the physical evaluation, claims of noncompliance with a settlemen t agreement must generally be raised in a petition for enforcement filed in the first instance with the Board’s regional office. Secrist v. U.S. Postal Service , 115 M.S.P.R. 199 , ¶ 8 (2010); Henson , 86 M.S.P.R. 221 , ¶ 15. 6 that her appeal be reinstated.4 Because the terms of the settlement agreement are facially inconsistent with the arguments presented on review by the appellant, and because she remains free to reinstate her appeal under the terms of the agreement, we do not need to forward this matter for docketing as an enforcement matter . 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 HTS5 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summar y of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should 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 4 Following the dismissal of this case as settled, the appellant submitted a second appeal form concerning this matter, which was docketed as a new initial appeal. Williams v. Department of Veterans Affairs , MSPB Docket No. AT -3443 -16-0792 -I-1, Initial Appeal File (0792 AF) , Tab 1. During the pendency of the petition for review in the instant case, the appellant submitted a voluntary request to withdraw the case in the region “to avoid confusion,” noting that her petition for review was pending. 0792 AF , Tab 8. Subsequently, the a dministrative judge issued an initial decision granting the appellant’s request . 0792 AF , Tab 9 , Initial Decision . 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisi ons. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 7 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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 8 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, 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 the ir respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your rep resentative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EE OC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 9 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2 302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Cir cuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 10 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants b efore the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective website s, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	WILLIAMS_ANTONIA_MARIE_AT_0752_16_0629_I_1_FINAL_ORDER_1976810.pdf	2022-11-09	null	AT-0752	NP
3,948	https://www.mspb.gov/decisions/nonprecedential/BURGESS_SILAS_NY_0752_17_0068_X_1_FINAL_ORDER_1976915.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SILAS BURGESS, III, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER NY-0752 -17-0068 -X-1 DATE: November 9, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Cassanova Hambrick , Clarkton, North Carolina, for the appellant. Leslie L. Rowe , Esquire, New York, New York, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 On May 15, 2017, the administrative judge issued a compli ance initial decision finding the agency in noncompliance with a settlement agreement that resolved the appellant’s removal appeal. Burgess v. U.S. Postal Service , MSPB 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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 Docket No. NY-0752 -17-0068 -C-1, Tab 11, Compliance Initial Decision (CID). For the re asons discussed below, we now find the agency in compliance, DISMISS the petition for enforcement, and DENY the appellant’s request for compensatory and consequential damages . DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶2 On March 29, 2017, the part ies entered into a settlement agreement that resolved the appellant’s removal appeal. Burgess v. U.S. Postal Service , MSPB Docket No. NY-0752 -17-0068 -I-1, Initial Appeal File (IAF), Tab 22. In a March 30, 2017 initial decision, the administrative judge d ismissed the removal appeal as settled and entered the parties’ settlement agreement into the record for enforcement purposes. IAF, Tab 23, Initial Decision (ID). ¶3 The appellant subsequently petitioned for enforcement of the settlement agreement, and on May 15, 2017, the administrative judge issued a compliance initial decision finding the agency in noncompliance with the settlement agreement. CID at 1, 3-5. The administrative judge found that the agency failed to comply with a settlement agreement term requiring it to reinstate the appellant, effective April 1, 2017, to “his [Postal Service] Form 50 Assignment that was effectuated on August 27, 2011 at the FDR Parcel Post Annex with a schedule of 10:00 PM to 6:30 AM with Tuesday/Wednesday rest days.” C ID at 3-4; IAF, Tab 22 at 5. The administrative judge found that, although the agency reinstated the appellant, it failed to provide him with the work schedule and rest days required by the settlement agreement. CID at 2 -4. She further found that the agency failed to comply with a term in the settlement agreement requiring it to provide the appellant with back pay.2 CID at 4; IAF, Tab 22 at 5. The administrative judge ordered the agency to provide the appellant with back pay 2 The settlement agreement did not require the agency to pay interest on the back pay, and accordingly, interest on the back pay is not at issue in this compliance matter. IAF, Tab 22 at 5. 3 and to assign him to a Supe rvisor, Customer Services (SCS) position at the FDR Parcel Post Annex with the work schedule and rest days required by the settlement agreement within 20 days of the issuance of the compliance initial decision. CID at 5. ¶4 On July 10, 2017, the agency submi tted a response to the compliance initial decision. Burgess v. U.S. Postal Service , MSPB Docket No. NY -0752 -17-0068 - X-1, Compliance Referral File (CRF), Tab 4. The agency submitted evidence that, on July 7, 2017, it provided the appellant with $6,249.17 in back pay, and also submitted supporting documentation pertaining to the calculation of that back pay. Id. at 7-16. In addition, the agency submitted the appellant’s time and attendance records, which reflected that, on June 14, 2017, the agency change d the appellant’s schedule to place him in a position with a start time of 10:00 p.m. and an end time of 6:30 a.m., with rest days of Tuesdays and Wednesdays. Id. at 18-23. However, the specific position that the agency placed the appellant in was not ap parent from those time and attendance records. Id. ¶5 The appellant submitted two pleadings in reply to the agency’s response to the compliance initial decision. CRF, Tabs 6 -7. He did not dispute that the agency provided him with back pay or contest the ag ency’s calculation of that back pay. CRF, Tab 6 at 3, Tab 7 at 3. However, he generally asserted that the agency failed to assign him to the position required by the settlement agreement, although he did not set forth any specific factual allegations to support this claim. CRF, Tab 6 at 3, Tab 7 at 3. ¶6 On September 15, 2017, the Board issued an order directing the appellant to explain the basis for his contention that the agency failed to place him in the position required by the settlement agreement an d to submit any evidence that he relied on in support of that contention. CRF, Tab 8 at 3. In response, the appellant submitted a pleading in which he asserted that, instead of placing him in the position required by the settlement agreement, the agency placed him “on an automation machine (ADUS Machine) that is a part of a pilot program that the 4 USPS has worked on for over three years that is domiciled at FDR Station.” CRF, Tab 9 at 4. ¶7 On May 22, 2018, the Board issued an order directing the agency to submit additional evidence regarding whether it reinstated the appellant to the position required by the settlement agreement. CRF, Tab 12 at 3 -4. In response, on June 1, 2018, the agency submitted the declaration of the Customer Services Manager for th e agency’s FDR Station, which encompasses the FDR Parcel Post Annex. CRF, Tab 13 at 6 -7. The Customer Services Manager declared under penalty of perjury that, as of June 14, 2017, the agency reinstated the appellant to the same position that he held on A ugust 27, 2011, which was an SCS position at the FDR Parcel Post Annex with a start time of 10:00 p.m. and an end time of 6:30 a.m., with rest days of Tuesdays and Wednesdays. Id. at 6. The Customer Services Manager further explained that the agency bega n using the ADUS machine on or about November 2014 and that supervising the ADUS machine had become a part of the duties of an SCS at the FDR Parcel Post Annex since that time.3 Id. at 6-7. ¶8 In a June 19, 2018 reply to the agency’s response, the appella nt generally asserted that the agency failed to place him in the same “work assignment” that he held in August 2011, but he contended that he did not intend to seek further relief and requested that the Board dismiss his petition for enforcement. CRF, Tab 14 at 3. 3 Neither the agency nor the appellant provided the Board with an explanation of what the acronym “ADUS” refers to, or what agency function the ADUS machine performs. CRF, Tab 9 at 4, Tab 13 at 6 -7. However, according to various U.S. Postal Service websites and blogs, the abbrev iation appears to refer to “Automated Delivery Unit Sorters,” which are machines whose purpose is to try to expand package sorting capabilities. See, e.g. , U.S. Postal Service, Office of Inspector General, Audit Report, Report No. 20-095-R21, Automated De livery Unit Sorter Cost Savings (Oct. 1, 2020 ), https://www.uspsoig.gov/sites/default/files/document -library -files/ 2021 /20-095- R21.pdf. 5 ¶9 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. Burke v. Department of Veterans Affairs , 121 M.S.P.R. 299 , ¶ 8 (2014). When an appellant alleges noncompliance with a settlement agreement, an agency must produce relevant material evidence of its compliance with the agreement or show that there was good cause for noncompliance. Id. The ultimate burden, however, remains with the appellant to prove breach by a preponderance of the evidence. Id. ¶10 Here, the agency submitted evidence that it provided the appellant with the back pay requi red by the settlement agreement, and he does not dispute that the agency provided him with the correct amount of back pay. CRF, Tab 4 at 7-16. The agency also submitted evidence that it reinstated the appellant to the position and with the work schedule and rest days required by the settlement agreement. CRF, Tab 4 at 18-23, Tab 13 at 6 -7. We find the appellant’s allegations that the agency failed to reinstate him to the correct position to be insufficient to overcome the agency’s evidence of compliance with the settlement agreement. The settlement agreement did not prohibit the agency from requiring the appellant to perform additional duties that had been added to his SCS position since August 27, 2011. IAF, Tab 22 at 5. In any event, the appellant —apparently agreeing with the agency regarding the changing nature of the agency’s operations —has requested that his petition for enforcement be dismissed. CRF, Tab 14 at 3. ¶11 The appellant also has requested that the Board award him compensatory and conseq uential damages for the agency’s breach of the settlement agreement. CRF, Tab 3 at 3, Tab 7 at 3, 7 -8. The Board lacks authority to award damages for breach of a settlement agreement, and the agency is now in compliance with the settlement agreement. See Principe v. U.S. Postal Service , 101 M.S.P.R. 626 , ¶ 3 (2006) (finding that the Board lacks authority to award damages for the br each of a settlement agreement). To the extent that the appellant requests that the Board 6 sanction the agency for its delay in complying with the settlement agreement, the Board lacks authority to impose sanctions once compliance has been obtained. Bruto n v. Department of Veterans Affairs , 112 M.S.P.R. 313 , ¶ 14 (2009). ¶12 Accordingly, for these reasons, we find that the agency is now in compliance with the settlement agreement and dismiss the petition for enforcement. This is the final decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations, 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 fo und at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees and costs WITHIN 60 CALENDAR DAYS OF THE DATE 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 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 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights incl uded in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 7 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 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 8 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circu it), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excludi ng all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file 9 with the EEOC no later than 30 calendar days after your representa tive receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C . § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition o f 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 Appea ls for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 201 8, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 10 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 Madiso n Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and App ellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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	BURGESS_SILAS_NY_0752_17_0068_X_1_FINAL_ORDER_1976915.pdf	2022-11-09	null	NY-0752	NP
3,949	https://www.mspb.gov/decisions/nonprecedential/JENKINS_BENJAMIN_E_SF_0752_16_0486_I_1_FINAL_ORDER_1976422.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD BENJAMIN E. JENKINS, Appellant, v. DEPARTMENT OF THE NA VY, Agency. DOCKET NUMBER SF-0752 -16-0486 -I-1 DATE: November 8, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Benjamin E. Jenkins , La Mesa, California, pro se. Julianne Surane , Port Hueneme, California, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The app ellant has filed a petition for review of the initial decision, which dismissed his involuntary resignation appeal for lack of Board jurisdiction . Generally, we grant petitions such as this one only when: the initial decision contains erroneous findings of material fact; the initial decision is based on an 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initi al decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). DISCUSSION OF ARGUME NTS ON REVIEW ¶2 On May 11, 2016, the appellant, a Supervisory Administrative/Technical Specialist, fi led a timely appeal alleging that his resignation was involuntary. Initial Appeal File (IAF), Tab 1. In response to the administrative judge’s acknowledgement order noting that the Board may not have jurisdiction over his appeal , the appellant admitted that his resignation was during his probationary period but alleged that the proposed termination that preceded his resignation was for “partisan reasons.” IAF, Tab 2 at 2, Tab 5 at 4 -9. ¶3 Without holding the appellant’s requested hearing, t he administrative judge issued an initial decision finding that the appellant was not an “employee” with Board appeal rights as defined at 5 U.S.C. § 7511 (a)(1)(A), and thus the Board lacked jurisdiction over the a ppellant’ s probationary appeal. IAF, Tab 13, Initial Decision ( ID) at 1, 8. The administrative judge also held that the appellant failed to raise nonfrivolous allegations that he was subject ed to partisan po litical discrimination, or that his resignation was involuntary . ID at 9, 12. Finally, the administrative judge found that , because the appellant lacked an otherwise 3 appealable claim , the Board lacked jurisdiction to consider his claim s of discrimination and retaliation for engaging in equal employme nt opportunity activity . ID at 12 -13. ¶4 On review, the appellant does not dispute the fact that he was serving in a probationary period at the time of his resignation. Petition for Review (PFR) File, Tab 1 at 4 , Tab 4 at 4. Instead, he argues , as he did b elow , that his proposed termination was motivated by what he describes as “partisan political motivations” and “internal partisan political reasons.” PFR File, Tab 1 at 5, Tab 4 at 4; see IAF, Tab 8 at 5. He also restates his claim that his resignation was involuntary , and argues that his performance was satisfactory and undeserving of the proposed termination . PFR File, Tab 1 at 4-5. The agency has responded to the petition for review. PFR File, Tab 3. The appellant was not an “employee” under 5 U.S.C. § 7511 (a)(1)(A)(i) . ¶5 The Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). Whether an individual in the competitive service has the right to appeal an adverse action depends on whether he is an “employee” under 5 U.S.C. § 7511 (a)(1)(A). Walker v. Department of the Army , 119 M.S.P.R. 391 , ¶ 5 (2013). Under 5 U.S.C. § 7511 (a)(1)(A) , an employee i s an individual in the competitive service (i) who is not serving a probationary or trial period under an initial appointment, or (ii) who has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less. In an adverse action appeal, an appellant is entitled to a hearing on jurisdiction if he makes a nonfrivolous claim of Board jurisdiction, at which he must prove jurisdiction by preponderant evidence. Garcia v. Department of Homeland Security , 437 F.3d 1322 , 13 44 (Fed. Cir. 2006) (en banc). Nonfrivolous allegations are allegations of fact that, if proven, could establish that the Board has jurisdiction over the matter at issue. Walker , 119 M.S.P.R. 391 , ¶ 6 n.2. 4 ¶6 Here, a lthough the administrative judge did not directly address this point, because the appellant was appointed to the position at issue by reinsta tement, he is subject to the regulation at 5 C.F.R. § 315.801 (a)(2) regarding probationary periods for reinstated individuals.2 ¶7 An agency may appoint by reinstatement to a competitive -service position an individual who previously was employed under a career or career -conditional appointment. 5 C.F.R. § 315.401 (a). Under 5 C.F.R. § 315.801 (a), the first year of service of an employee who is given a career or career -conditional appointment in the competitive service is a probationary period when, among other things, the employee was reinstated under the a uthority set forth at 5 C.F.R. § 315.401 , unless during any period of service that affords a current basis for reinstatement, the employee completed a probationary period or served with c ompetitive status under an appointment that did not require a probationary period. Abdullah v. Department of the Treasury , 113 M. S.P.R. 99 , ¶¶ 11 -12 (2009). Thus, if the appellant’s appointment was a reinstatement appointment that met the criteria of 5 C.F.R. § 315.801 (a)(2) , then he would be an “employee” with ad verse action appeal rights under 5 U.S.C. § 7511 (a)(1)(A)(i). Id. ¶8 The Standard Form 50 documenting the appellant’s appointment reflects that he was appointed by reinstatement under 5 C.F.R. § 315.401 . IAF, Tab 7 at 11. Additionally, the agency does not dispute that the appellant was appointed to his position by reinstatement. Id. at 4. However, as the appellant concedes , and as the undisputed record establishes, the appellant did not complete a probationary period while serving in the position from which he was reinstated, resigning from that position after only 5 months. PFR File, Tab 4 at 4; IAF, Tab 7 at 10, Tab 10 at 4. Thus, even if the appellant’s prior service were 2 Although the appellant’s Standard Form 50 identifies that his appointment was by reinstatement, it does not identify the position from whi ch he was reinstated. IAF, Tab 7 at 11. Nothing in the record suggests that the appellant was not reinstated from the non-supervisory Administrative/Technical Spec ialist position with the agency that he occupied in the year prior to the position involved in this appeal. 5 considered under 5 C.F.R. § 315.801 (a)(2), he still would not have completed the requisite 1 -year probationary period, and w ould not have any statutory right of appeal to the Board.3 The administrative judge correctly found that the appellant was not an “employee” und er 5 U.S.C. § 7511 (a)(1)(A)(ii) . ¶9 Alternatively, an appellant can show that, while he may be a probationer, he satisfies the definition of an “employee” in 5 U.S.C. § 7511 (a)(1)(A)(ii), which requires that he have “completed 1 year of current continuous service under other than a temporary appointm ent limited to 1 year or less.” Hurston v. Department of the Army , 113 M.S .P.R. 34 , ¶ 9 (2010) . The Board has held that, for competitive -service employees, “current continuous service” means a period of employment or service immediately preceding an adverse action without a break in Federal civilian employment of a workday. Ellefson v. Department of the Army , 98 M.S.P.R. 191 , ¶ 14 (2005); 5 C.F.R. § 752.402 . ¶10 It is undisputed that the appellant resigned from his previous Federal position with the same agency, effective September 21, 2014, and thus had a 13-month break in service prior to his November 16, 2015 reinstatement appointment. IAF, Tab 7 at 10 -11. The appellant did not identify any other Federal service during the 13 -month period between his resignation on September 21, 2014 , and his reinstatement appointment on November 1 6, 2015. IAF, Tab 7 at 1 1, Tab 10 at 4. Additionally, it is undisputed that the appellant was only employed in his reinstatement position for less than 6 months, from November 16, 2015 , until his resignation on May 2, 2016. IAF, Tab 7 at 11 , Tab 5 at 14. As such, we agree with the administrative judge’s fi nding that the appellant does not meet the definition of “employee” under 5 U.S.C. 3 We also agree with the administrative judge that the appellant’s prior service cannot be counted towards the completion of his probationary period under 5 C.F.R. § 315.802 (b) because it was followed by a break in service of more than 30 calendar days . 6 § 7511 (a)(1)(A)(ii) because h e lacked 1 year of cur rent continuous service . ID at 6-7. The appellant has not demonstrated that he was subject ed to discrimination on the basis of any partisan political activity . ¶11 In describing his claim of discrimination on the basis of partisan political activity, the appellant argues that he was in the “wrong camp” and one “adver se to” his supervisor within the agency’s contracting department, and that this was the reason that the agency proposed his termination. PFR File, Tab 1 at 5 -6. The appellant misunderstands the meaning of the language; the phrase “partisan political reas ons” as used in 5 C.F.R. § 315.806 (b), means “discrimination based on affiliation with any political party or candidate.” Mastriano v. Federal Aviation Administration , 714 F.2d 1152 , 1155 -56 (Fed. Cir. 1983). The appellant does not allege that he suffered any discrimination based on his affiliation with any political party or c andidate. Instead, he repeatedly argues for an expanded reading of the term “partisan political motivations” to include the agency’s internal “partisan” divisions. PFR File, Tab 1 at 5. However, nothing in 5 C.F.R. § 315.806 (b) or in any prior Board precedent contemplates such a reading of the term. ¶12 Merely citing the language, the appellant has not provided any evidence that he suffered any harm as a result of his affiliation with any political party or candidate, or even that any agency employee was aware that he had any such affiliation. PFR File, Tab 1 at 5 -6. As such, we agree with the administrative judge’s conclusion that the appellant ’s allegation of partisan political status discrimination is without merit. ¶13 Finally, a s he did below , the appellant argues that his resignation was involuntary, stating that the agency coerced him into resigning by placing him in a “high stress” situation that “effectively deprived [him] of free cho ice” when it instructed him that he wo uld be terminated and provided him the opportunity to resign in lieu of termination. Id. at 4. The appellant also argues that his 7 performance was adequate and that he was not advised of any performance problems prior to be ing informed that he would be terminated. Id. at 5. These arguments pertain to the merits of the involuntary resignation claim , rather than to the Board’s jurisdiction over the appeal, and do not provide a basis to disturb the initial decision. See Schmittling v. Department of the Army , 219 F.3d 1332 , 1337 (Fed. Cir. 2000) (finding that a decision on the merits would be a nullity in the absence of Board jurisdiction); Sapla v. Department of the Navy , 118 M.S.P.R. 551 , ¶ 7 (2012) (finding that an appellant’s arguments on review regarding the merits of an agency action were not relevant to whether the Board had jurisdiction over an appeal). ¶14 Accordingly, we affirm the administrative judge’s determination to dismiss the appeal for lack of jurisdiction. NOTICE OF APPEAL RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the ti me limit for seeking 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 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. 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 8 Please read 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 C ircuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 opti on applies to you only if you have claimed that you 9 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —includin g a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim o f discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www. uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 10 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review t o the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursua nt to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a pro hibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Cir cuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your 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 Rev iew Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other cir cuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 11 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Wash ington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/pro bono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_ Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	JENKINS_BENJAMIN_E_SF_0752_16_0486_I_1_FINAL_ORDER_1976422.pdf	2022-11-08	null	SF-0752	NP
3,950	https://www.mspb.gov/decisions/nonprecedential/BAJUSCAK_RONALD_DA_1221_15_0552_B_1_FINAL_ORDER_1976533.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD RONALD BAJUSCAK, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER DA-1221 -15-0552 -B-1 DATE: November 8, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Ronald Bajuscak , Mesa, Arizona, pro se. Chau Phan , Esquire, Salt Lake City, Utah , for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant ha s filed a petition for review of the remand initial decision, which denied 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 contain s 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 course of th e appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petiti oner ’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review . Except as expressly MODIFIED by this Final Order to VACATE the administrative judge ’s findings concerning whether the agency met its clear and convincing burden , we AFFIRM the remand initial decision. BACKGROUND ¶2 The relevant background information, as recited in the remand initial decision, is generally undisputed. On June 5, 2011, the agency appointed the appellant to a dentist position in the excepted service under 38 U.S.C. § 7401 (1). Bajuscak v. Department of Veterans Aff airs, MSPB Docket No. DA -1221 -15- 0552 -B-1, Remand File ( RF), Tab 29, Remand Initial Decision ( RID) at 2; Bajuscak v. Department of Veterans Affairs , MSPB Docket No. DA -1221 -15- 0552 -W-1, Initial Appeal File ( IAF), Tab 10 at 87 -88. Immediately before his June 5, 2011 appointment to the excepted service at the Department of Veterans Affairs (VA) , the appellant wor ked as a dentist under a career -conditional appointment for the U.S. Navy , beginning on August 30, 2010 . RID at 2, 28 -29. The Standard Form 50 ( SF-50) documenting his appointment to the dentist position in the excepted service at the VA on June 5, 2011, stated in the remarks section “ initial probationary period completed.” RID at 2; IAF, Tab 10 at 87. 3 The agency issued a corrected SF -50 on Octob er 17, 2011 , changing the remarks section to clarify that the appellant’s excepted -service appointment was subject to the completion of a 2-year probationary period beginning on June 5, 2011 . RID at 2; IAF, Tab 10 at 86 . The agency described the change a s a required correction because dentists and doctors appointed to the excepted service under Title 38 of the United States Code are required to serve a 2 -year probationary period, and the appellant ’s previous appointment was not to a position in the except ed service. RID at 21, 29 -30; IAF, Tab 9 at 11; see 38 U.S.C. § 7403 (a)(2)(A) -(B), (b)(1). ¶3 On October 27, 2011, the appellant ’s supervisor rated him as unsatisfactory for the period of June 6 through September 30, 2011, commenting that he “does not have potential for advancement to higher clinical and/or administrative positions.” RID at 2 -3. On November 9, 2011, the Acting Med ical Center Director detailed the appellant to “voluntary service ” and assigned him to nonpatient care duties, which included pushing wheelchairs and hospital beds. RID at 3. On November 17, 2011, the Acting Chief of Staff recommended a summary suspensio n of the appellant ’s clinical privileges, pending the results of a Summary Review Board. Id. Her recommendation was based on findings from a review of 31 medical charts and adopted on that same day by a 3-member Professional Standards Board (PSB). Id.; RF, Tab 22 at 181 -82. On November 21, 2011, the Acting Medical Center Director issued a letter removing the appellant ’s clinical privileges pending a comprehensive review of allegations that aspects of his clinical practice did “not meet the accepted stan dards of practice and potentially constitute[d] an imminent threat to patient welfare.” RID at 3; RF, Tab 22 at 184. Within a week of receiving the letter removing his clinical privileges, the appellant initiated contact with the agency ’s equal employmen t opportunity counselor on November 29, 2011, alleging that his supervisor sexually harassed him and retaliated against him when he rejected her advances and began seeking employment elsewhere. RID at 3 -4. 4 ¶4 On January 6, 2012 , the PSB reviewed the appell ant’s conduct and performance and concluded that he failed to meet the standards of care expected of agency dentists. RID at 5; IAF, Tab 9 at 57-58. The PSB recommended terminating the appellant during his probationary period based on its summary review of 31 patient records submitted by the appellant ’s supervisor, the Chief of Dental Service; progress notes and x -rays; and the written and oral responses of the appellan t. RID at 5; IAF, Tab 9 at 57 . The Acting Chief of Staff agreed with the PSB recommendation to terminate the appellant, and the Acting Medical Center Director ap proved the recommendation and issued a letter terminating the appellant e ffective January 20, 2012, during his 2 -year probationary period . RID at 5; IAF, Tab 9 at 15, 19. ¶5 After his termination, the appellant filed a complaint with the Office of Special Counsel (OSC) ( OSC File N o. MA -12-2402 ), alleging that he was subje cted to the following retaliatory personnel actions: (1) his supervisor had changed his SF -50 from permane nt to probationary employment ; (2) he received an unsatisfactory mid term eval uation; (3) he was detailed to voluntary service; (4) his dentist privileges were suspended; (5) his transfer to another facility was rescinded; and (6) he was ultimately removed from his position. RID at 6; IAF, Tab 18 at 44. On July 23, 2012, OSC informed the appellant that i t was closing its investigation into whether a violation of 5 U.S.C. § 2302 (b)(8) occurred and that he could seek corrective action from the Board. RID at 6; IAF, Tab 18 at 45-46. ¶6 In 2015, the appellant filed an other OSC complaint (OSC File No. MA -14- 4527), in which he alleged that the agency improperly required him to serve a new probationary period and terminated him in retaliation for whistleblowing .2 RID at 6-7, 11; IAF, Tab 18 at 47 -48. On April 30, 2015, OSC i nformed the appellant that it was closing its inquiry into his complaint. RID at 7, 11; IAF, 2 The record does not contain a copy of the OSC complaints filed by the appellant in OSC File No. MA -14-4527 or in OSC File No. MA -12-2402. RID at 11 n.4. 5 Tab 18 at 47 -48. Having exhausted his administrative remedy before OSC, the appellant filed the instant IRA appeal with the Board , and he requested a hearing. RID at 7, 11-12; IAF, Tab 1. The administrative judge dismissed the appeal as untimely filed, but, on review, the Board found a sufficient basis to waive the filing deadline and remanded the case for further adjudication. Bajuscak v. Department of Veteran s Affairs , MSPB Docket No. DA -1221 -15-0552 -W-1, Remand Order (Apr. 29, 2016). ¶7 On remand, t he administrative judge found that the appellant met his burden of establishing that the Board has jurisdiction over his IRA appeal because he exhausted his administr ative remedies before OSC and made nonfrivolou s allegations that h e made at least one protected disclosure that was a con tributing factor in the agency ’s decision to take a personnel action.3 RID at 12 -14. After holding a hearing , the a dministrative judg e issued a remand initial decision denying the appellant ’s request for corrective action. RID at 41 -42; RF, Tab 28, Hearing Compact Disc. The administrative judge found that the appellant made protected disclosures to a human r esources (HR) officer in September 2011 when he disclosed that his supervisor manipulated and threatened her subordinates and that she used an illegal leave tracker form in violation of the Federal Service Labor -Management Relations A ct. RID at 17-21.4 The administrative judge further found that the appellant did not meet his burden of proving that any of his protected disclosur es was a contributing factor in any of the six alleged personnel actions. RID at 13 -14, 27 -36. The administrative judge also found that, 3 The administrative judge also found that the Boa rd lacks jurisdiction over an appeal of his termination under 5 U.S.C. chapter 75 because appointees under 38 U.S.C. § 7401 (1) are specifically excluded from the definition of “employee” un der 5 U.S.C. § 7511 . RID at 8. The administrative judge found , moreover, that the other personnel actions that the appellant alleged on appeal were not adverse actions directly appealable to the Board , and his allegations could only be reviewed by the Board in an IRA appeal. Id. The parties do not dispute these findings on r eview , and we affirm them. 4 The adm inistrative judge found that the appellant’s other alleged disclosures were not protected whistleblowing as described in 5 U.S.C. § 2302 (b)(8). RID at 14 -27. 6 assuming arguendo that the appellant had demonstrated that his disclosures were contributing factors in the actions taken against him, the agency proved by clear and convincing evidence that it would have taken the personnel actions absent the protected disclosures . RID at 36 -41. ¶8 The appellant has filed a petition for review. Bajuscak v. Department of Veterans Affairs , MSPB Docket No. DA -1221 -15-0552 -B-1, Remand Petition for Review ( RPFR) File, Tab 1. The agency has responded in opposition to his petition, and th e appellant has replied. RPFR File, Tabs 4 -5. DISCUSSION OF ARGUMENTS ON REVI EW ¶9 The appellant submits the following one -paragraph argument in support of his petition : Numerous documents were submitted including specific actions against me with timelines from information recorded on the very day it occurred. During my hearing many specific occurences [sic] with timelines submitted on documents were not considered in my opinion. The entire timing of all the falsifications of my hiring documents, being placed in charge and then suddenly being removed clinically ’s [sic] timing is proof within itself of whistleblowing retaliation by the Veterans Hospital. Nationally, this attack on whistleblowers has been exposed, as I went through, and again the system “being broken” is trying to deny me my rights. I want a non-biased review of all my submitted documents be cross examined paying particular notice to dates of actions again st me and the timing of final actions taken. I know numerous issues were not expressed by me during the hearing and was and am shocked that such aggressive actions of retaliation are considered okay!! RPFR File, Tab 1 at 4. We construe the appellant ’s arguments as challenging the administrative judge ’s finding that his protected disclosures were not a contributing factor in the following personnel actions: alter ing his SF -50 to require the completion of a 2 -year probationary period and his termination.5 In 5 The appellant does not appear to challenge the administrative judge’s other findings concerning the alleged protected disclosures and personnel actions. We affirm those findings for the reasons stated in the initial decision. RID at 1 4-27. 7 his reply brief, the appellant further asserts that he has additional witnesses to testify against the agency. RPFR File, Tab 5 at 3. For the following reasons, we find that the administrative judge properly found that the appellant failed to prove by preponderant evidence that his disclosures were a contributing factor in any of the personnel actions. ¶10 When , as here, an appellant exhausts his administrative remedy with OSC and establishes the Board ’s jurisdiction in an IRA appeal, the appellant then must establish a prima facie case of whistleblower retaliation by , as relevant here, proving by preponderant evidence that he made a protected disclosure as described in 5 U.S.C. § 2302 (b)(8) that was a contributing factor in a personnel action taken against him.6 See Lu v. Department of Homeland Security , 122 M.S.P.R. 3 35, ¶ 7 (2015). One way of proving that a disclosure was a contributing factor in a personnel action is the knowledge/timing test. Shannon v. Department of Veterans Affairs , 121 M.S.P.R. 221 , ¶ 23 (2014). Under that test, an appellant can prove the contributing factor element through evidence that the official taking the personnel action knew of the whistleblowing disclosure and took the personnel action within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action. Id. If the appellant makes a prima facie showing that his protected disclosure was a cont ributing factor in the agency ’s personnel action, the burden shifts to the agency to prove by clear and convincing evidence that it would have taken the same personnel action in the absence of the protected disclosure. Lu, 122 M.S.P.R. 335 , ¶ 7. 6 The Whistleblower Protection Enhan cement Act of 2012 (WPEA), Pub. L. No. 112-199, 126 Stat. 1465 , section 101(b)(1)(A) expanded the grounds for covered individuals to bring an IRA appeal with the Board to include reprisal for classes of protected activity desc ribed at 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), and (D). A ll of the alleged retaliatory acts at issue in this appeal occurred prior to the December 27, 2012 effective date of the WPEA, and thus this expanded grant of jurisdiction does not apply here. RID at 9; see Rebstock Consolidation v. Department of Homeland Security , 122 M.S.P.R. 661 , ¶¶ 7-8 (2015 ). 8 ¶11 The remand initial decision reflects —concerning the agency officials who took the alleged actions —that the administrative judge considered the elapsed time between their having had any actual or constructive notice of the appellant ’s protected disclosures and the ir taking the personnel actions , but she found no evidence that the officials involved in correcti ng the appellant ’s SF-50 and terminating him had actual or constructive knowledge of his September 2011 protected disclosures. RID at 27 -30, 34 -36. Thus, she found no contributing factor under the knowledge/timing test. ¶12 The administrative judge also re cognized that , if the appellant failed to satisfy the knowledge/timing test, the Board should consider other evidence, such as that pertaining to the strength or weakness of the agency ’s reasons for taking the personnel action, whether the whistleblowing w as personally directed at the proposing or deciding officials, and whether those individuals had a desire or motive to retaliate against the appellant. RID at 27 -28; see Stiles v. Department of Homeland Security , 116 M.S.P.R. 263 , ¶¶ 23 -24 (2011). The administrative judge found that the officials involved in taking the personnel actions again st the appellant had strong, non retaliatory motives for the personnel actions taken, including changing his SF-50 to require his completi ng a 2-year probationary period and terminating him during h is probationary period. RID at 21, 28-30, 34-36. Moreover , it is undisputed that t he appellant ’s whistleblowing was not personally directed at the HR speciali st who signed the corrected SF -50 requiring him to complete a 2 -year probationary period , the PSB members that recommended his termination , or the Acting M edical Center Director who terminated him. RID at 21. Accordingly, the administrative judge found that the appellant failed to establish a prima facie case of whistleblower retaliation by proving that his protected disclosure was a contributing factor in a pe rsonnel action taken against him . RID at 27 -36. The appellant ’s general arguments on review do not persuade us that th ere were any errors in the administrative judge ’s contributing -factor analysis. See Tine s v. Department of the Air Force , 9 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 serious evidentiary challenge justifying a complete review of the record) . ¶13 To the extent the appellant argues generally that certain documents related to his whistleblowing disclosure s were not conside red or mentioned, RPFR File, Tab 1 at 4, it is well established that an administrative judge ’s failure to mention all of the evidence of record does not mean that she did not consider it in reaching her decision. 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). ¶14 Although the appellant asks the Board to review all of the documents that he submitted on appeal to take notice of “the dates of actions against [him] and the timing of final actions taken,” we find t hat his petition for review is not sufficient ly specific to enable the Board to ascertain whether there is a serious evidentiary challenge justifying a com plete review of the record. See Tines , 56 M.S.P.R. at 92; Weaver v. Department of the Navy , 2 M.S.P.R. 129 , 133 (1980) (determining that, be fore the Board will undertake a complete review of the record , the petitioning party must explain why the challenged fac tual determination is incorrect and identify the specific evidence in the record which demonstrates the error), review denied , 669 F.2d 613 (9th Cir. 1982) (per curium). ¶15 For the foregoing reasons, we will not disturb the administrative judge’s explained finding that the appellant failed to prove that his protected disclosures were a contributing factor in the agency’s decision to take any of the contested personnel actions. RID at 27-36. Because we agree wit h the administrative judge’s finding that the appellant failed to prove by preponderant evidence that his protected disclosures were a contributing factor in the actions taken, it is unnecessary to determine whether the agency proved by clear and convincin g evidence that it would have taken the actions at issue in the absence of the disclosure. See Clarke v. Department of Veterans Affairs , 121 M.S.P.R. 154 , ¶ 19 10 n.10 (2014) , aff’d , 623 F. App’x 1016 (Fed. Cir. 2015 ). Accordingly, we vacate the administrative judge ’s findings concerning whether the agency met its clear and convincing burden. ¶16 We have considered the appellant ’s assertion on review that he had numerous witnesses who could have testified at the hearing on his appeal but he did not want to overwhelm the proceeding. RPFR File, Tab 5 at 3. We also have considered his contention that unnamed individuals, who have been “fired or forced to resign from this same VA medical center,” could provide new testimony against the agency. Id. However, the appellant offers no specific evidence or argument to explain what the unidentified potential witnesses might testify about that would have changed the outcome of his appeal. Moreover, the appellant waited until after the record closed below and the initial decision was issued to come forward with these unnamed witnesses, and he cannot now complain that these witnesses were not allowed t o testify. ¶17 The Board will not consider evidence submitted for the first time with the petition for review absent a showing that it was unavailable before the record was closed despite the party ’s due diligence. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980); 5 C.F.R. § 1201.115 . In this case, the appellant has failed to establish that he could not reasonably have known that these alleged witnesses had information relevant to his appeal prior to the close of the record below or that he could not find the same or similar information elsewhere. See Pangarova v. D epartment of the Army , 28 M.S.P.R. 652 , 656 (1985) (finding that an affidavit from a witness who had previously not come forward, abou t a subjec t that the appellant knew was at issue, was not “new” evidence when he failed to show that he could not find the same or similar information elsewhere); Williams v. General Services Administration , 22 M.S.P.R. 476 , 479 (1984) ( finding that affidavits from witnesses known to the agency but previously unwilling to testif y were not “new” evidence), aff’d, 770 F.2d 182 (Fed. Cir. 1985). We therefore find that the appellant ’s assertions on review do not provide a sufficiently sound 11 reason for overturning the thorough, well-reasoned findings stated by the administrative judge in the remand initial decision. 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 li mit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Meri t Systems Protection Boar d does not provide legal advice on which option is most appropriate for your situation an d the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be receive d 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 m ost appropriate in any matter. 12 If you submit a petition for 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. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option ap plies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a clai m of 13 discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then 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 14 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice descri bed in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.8 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition 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 8 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 15 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR TH E BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	BAJUSCAK_RONALD_DA_1221_15_0552_B_1_FINAL_ORDER_1976533.pdf	2022-11-08	null	DA-1221	NP
3,951	https://www.mspb.gov/decisions/nonprecedential/MARIGNY_GLORIA_AT_0752_14_0737_I_2_FINAL_ORDER_1975861.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD GLORIA MARIGNY, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER AT-0752 -14-0737 -I-2 DATE: November 7, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Gloria Marigny , Milwaukee, Wisc onsin , pro se. Lois F. Prince and Bradley Flippin , Esquire, Nashville, 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 in itial decision, which dismissed her alleged involuntary resignation appeal for lack of jurisdiction . Generally, we grant petitions such as this one only in the following 1 A nonprecedential order is one that the Board has determined does not add significantly to the bo dy 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 iss ued as an Opinion and Order 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 w hen 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 pet itioner 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 worked for the agency as a Licensed Practical Nurse. Marigny v. Department of Veterans Affairs , Docket No. AT -0752 -14-0737 -I-1, Initial Appeal File (IAF), Tab 12, Subtab 4b. In December 2009, a Nurse Manager issued the appellant a written counseling for repeated instances of tardiness. IAF, Tab 24 at 50 -51. In September 2010 , a Chief Nurse placed the appellant on a 4-week “orientation review” after the appellant made se veral medication and documentation errors. IAF, Tab 15 at 81 , Tab 24 at 48. The review period was extended due to her absences and u ltimately concluded in December 2010. IAF, Ta b 24 at 48 -49. The agency did not issue any discipline to the appellant as a resul t of her performance during the orientation period , although she was resistant to feedback and did not complete required training, and her performance during this period was mixed . Id. ¶3 In September 2011, a different Nurse Manager issued the appella nt a written admonishment for failing to attend a fact -finding meeting as instructed and for 3 absence without leave (AWOL). Id. at 10-12. Four days later , the appellant asked her Assistant Unit Manager to assign her to work with a different Registered Nur se for the remainder of her shift . IAF, Tab 14 at 6, Tab 27 at 125 . According to the appellant, during the course of this discussion , the Assistant Unit Manager refused her request and “intentionally bumped into [the appellant ], using her breasts . . . three times.” IAF, Tab 14 at 6 , Tab 27 at 125 . ¶4 On an unidentified date, one of the appellant’s coworkers reported to management that the appellant had failed to connect an assigned patient to his intravenous (IV) medication for almost an hour despite alert s from the IV equipment and three reminders from the coworker . Marigny v. Department of Veterans Affairs , MSPB Docket No. AT -0752 -14-0737 -I-2, Refiled Appeal File (RAF) , Tab 29, May 18, 2016 Hearing Compact Dis c (HCD) , Track 1 at 01:11:50 -01:15:36 (testim ony of the appellant’s coworker).2 After the appellant’s coworker gave her the third reminder, the appellant left the floor and another nurse performed this task . Id. ¶5 During April , May, and June 2012, different supervisors instructed the appellant to c omplete mandatory training and request leave for time off that she already had taken . IAF, Tab 12, Subtab 4b . As to the training, the appellant began taking it at one point in April 2012, but left while it was in progress . IAF, Tab 14 at 8 , Tab 24 at 34. According to the appellant, the training, which a supervisor told the appellant would take 20 to 30 minutes , in fact would take 1 to 2 hours, and she left to use the restroom . IAF, Tab 14 at 8, Tab 24 at 30. Based on her failure to follow instructions , as well as her tardiness on one occasion in April 2012, the Chief Nurse propo sed the appellant’s removal for failure to follow instructions and AWOL in July 2012. IAF, Tab 12, Subtab 4b. The appellant resigned from her position on September 6, 2012. R AF, Tab 37, Initial Decision (ID) at 1. In her resignation letter, she stated that she was resigning 2 It appears this incident may have occu rred in March 2012. IAF, Tab 1 at 1, Tab 14 at 7. 4 “due to [a] continued hostile work environment.” IAF, Tab 1 at 4. In 2014, the appellant filed an appeal, alleging that she resigned because of a hostil e work environment , unlawful discrimination , and reprisal for equal employment opportunity (EEO) activity. IAF, Tab 1 4 at 4-12; ID at 3 -4. Included among the incidents of harassment were the events listed above, as well as alleged mistreatment by her cow orkers. IAF, Tab 14 at 4 -12. ¶6 The administrative judge held the appellant’s requested hearing . ID at 1-2. Immediately prior to, during, and after the hearing , the appellant attempted to admit exhibits not previously entered in the record, including state ments from an approved witness who had n ot appeared at the hearing and from d isallowed witnesses. RAF, Tab 22 at 2-3, Tab 31, May 25, 2016 HCD , Tab 32 at 9-30. The administrative judge rejected many of th ose additional exhibits and did not consider them in making her findings. ID at 2 n.1. ¶7 The administrative judge issued an initial decision dismissing the appeal for failure to prove Board jurisdiction. ID at 1 -2, 18-19. She found that the appellant failed to prove that some incidents with management oc curred as alleged, and that management justified its actions as to other incidents . ID at 4-17. As to the appellant’s allegations that her coworkers subjected her to a hostile work environment, the administrative judge found that, even if true, the alleg ed incidents would not have cause d a reasonable person to resign. ID at 17-18. ¶8 The appellant has filed a petition for review of the initial decision. Petition for Review File (PFR) File, Tab 1. On review, she challenges the administrative judge’s cr edibility findings regarding many of the alleged incidents , reasserts her claim that her resignation was involuntary, and claims that the administrative judge committed procedural errors that violated her due process rights. PFR File, 5 Tab 1 at 5 -8, Tab 11 at 1-3. The agency has filed a response, to which the appellant has replied .3 PFR File, Tabs 10-11. DISCUSSION OF ARGUME NTS ON REVIEW The administrative judge made appropriate factual findings. ¶9 The administrative judge found that the agency provided the appellant with an orientation review because of her medication and documentation errors, designat ed certain of the appellant’s absences as AWOL because she was chronically late without obtaining prior approval , disciplined her because of this AWOL, and pr oposed her removal after she failed to follow repeated instructions to complete her mandatory training . ID at 4-6, 11 -12, 14 -17. The administrative judge also found that the appellant ’s Assistant Unit Manager did not assault the appellant and that the ap pellant failed to connect a patient to his IV as her coworker claimed ; and that the agency did not demote the appellant, assign her an unusually heavy workload , or unnecessarily disrupt her work as she alleged . ID 3 The appellant also has filed three motions for leave to submit additio nal documents. PFR File, Tabs 8, 13, 20. In letters acknowledging the appellant’s motions, the Office of the Clerk of the Board adv ised her that the Board’s regulations do not provide for such pleadings, and that, for the Board to consider the proffered submissions, she must describe the nature and need for them and show that the evidence was not readily available before the record cl osed. PFR File, Tabs 9, 14, 21; see 5 C.F.R. § 1201.114 (a)(5), (k). In her first motion, the appellant moves to submit additional evidence to “support[] [her] claim” and “show[] Contr adictory Statements.” PFR File, Tab 8 at 1. In her second motion, she indicates that she “would like to request Motion with leave to submit additional documents.” PFR File, Tab 13 at 1. In her third motion, she requests to submit “New documents . . . a pplicable to the Laws and Regulations of MSPB Due Process” and argument challenging an order issued by the administrative judge. PFR File, Tab 20 at 2, 4. She attributes any delay in submitting this argument and evidence to her attorney’s negligence; how ever, to the extent the appellant was represented below, she was responsible for the errors of her chosen representative. Gaetos v. Department of Veterans Affairs , 121 M.S.P.R. 201 , ¶ 6 (2014). The appellant does not appear to be represented on review. PFR File, Tab 1, Tab 20 at 2, 4. Because the appellant has not shown that the documents she seeks to submit were not readily availa ble before the close of the record or described how the proffered argument and evidence are relevant to the outcome of her petition for review, we DENY her motions. See 5 C.F.R. § 1201. 114(a)(5), (k). 6 at 4-13. In addition, she concluded that the appellant failed to provide sufficient evidence to meet her burden to prove that other alleged events occurred, such as her claim that her coworkers yelled at her or that her time and attendance records were changed without explanation. ID at 4 -5. Finally, the administrative judge concluded that, even if the appellant’s coworker s made comments based on race as alleged , the comments were insufficiently severe to cause a reasonable person in the appellant’s position to resign.4 ID at 17 -18. ¶10 The appe llant disputes these and other factual findings. PFR File, Tab 1 at 6-7. For example, she argues that she obtained prior approval for leave that was designated as AWOL, and that the agency assigned her an unfair workload and did not provide sufficient fe edback regarding her performance. Id. The appellant also argues without evidence that the administrative judge altered the hearing record. Id. at 5. ¶11 We decline to disturb the administrative judge’s factual findings. In making these findings, she assessed the witnesses’ demeanor and observations of the events, the inconsistency of the appellant ’s testimony and the record evidence, other witnesses ’ lack of motive to lie, and the inherent improbability of some of the appellant’s assertions.5 ID at 6, 8-13, 16-17; see Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458 (1987) (listing t hese and other factors an administrative judge must consider in resolving credibility issues) . The appellant’s mere disagreement with the administrative judge’s credibility findings 4 In her petition for review, the appellant does not challenge the administrative judge’s finding that the three or four alleged comments by her coworkers, suggesting that her last name and her children’s names were “white” and referring t o her skin tone, were not sufficient to establish Board jurisdiction over her appeal. PFR File, Tab 1 ; IAF, Tab 14 at 4 -5. To the extent that the appellant attempts to challenge this well -reasoned finding in her reply to the agency’s response to the peti tion for review, we decline to consider it. PFR File, Tab 11 at 3; see 5 C.F.R. § 1201.114 (a)(4) (limiting a reply to a response to a petition for review to the factual and legal issue s raised in the response). 5 Although the appellant argues that she was unable to clearly see one witness who was testifying via video conference, PFR, Tab 1 at 5, there is no indication that the clarity of the picture affected the administrative judge’s a bility to observe the witness. 7 is not a sufficiently sound reason for the Board to overturn those determinations. See Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) (finding that t he Board must defer to an administrative judge’ s credibility determinations when they are based, explicitly or implicitly, on observing the demeanor of witnesses testifying at a hearing ); Broughton v. Department of Health & Human Services , 33 M.S.P.R. 357 , 359 (1987) (finding that m ere reargument of factual issues already raised and properly resolved by the administrative judge below do not establish a basis for review ). Further, we decline to grant review based on the appel lant’s unsubstantiated claim that the record was altered. The appellant has not established that her resignation was involuntary. ¶12 A resignation is presumed to be a voluntary act and, therefore, beyond the Board ’s jurisdiction. Morrison v. Department of th e Navy , 122 M.S.P.R. 205, ¶ 5 (2015) (discussing this presumption in the context of an alleged coerced retirement). The presumpt ion that a resignation is voluntary can be rebutted if the employee can establish it was the product of duress or coercion brought on by Government action, or of misleading or deceptive information. Id. Jurisdiction is established in constructive adverse action appeals by showing: (1) the employee lacked a meaningful choice in the ma tter; and (2) it was the agency’ s wrongful actions that deprived her of that choice. Id. ¶13 In light of the administrative judge’s factual findings , as discussed above, we agre e that the agency had a reasonable basis to issue a warning and admonishment for the appellant’s AWOL and failure to follow instructions, place her on orientation review for a period of time due to medication and documentation errors, and propose her remov al for failure to follow supervisor y instructions and AWOL . ID at 3, 5-6, 11 -12, 14 -17; IAF, Tab 12, Subtab 4b . We therefore conclude that the proposed removal and other management actions at issue in this appeal were not coercive. See Morrison , 122 M.S.P.R. 205, ¶ 6 (declining to find that a retirement was coerced when the agency had reasonable 8 grounds for proposing the appellan t’s removal ); see also Savage v. Department of the Army , 122 M.S.P.R. 612 , ¶ 28 n.5 (2015) ( stating that, to prove an AWOL charge , an agency must show that the employee was absent without authorization and, if the employee requested leave, that the request was properly denied) , overruled in part by Pridgen v. Office of Management & Budget , 2022 MSPB 31 , ¶¶ 23 -25; Hamilton v. U.S. Postal Service , 71 M.S.P.R. 547 , 556 (1996) (holding that an agency establishes the charge of failure to follow supervisory instructions by showing that proper instructions were given to an employee and that he failed to follow them) . We also agree with the administrative judge that the appellant failed to show that a reasonable person in her position would have felt that she had no realistic alternative but to resign . ¶14 The appellant also argues that the administrative judge should not have considered her dis crimination claims . PFR File, Tab 1 at 6. We disagree. The administrative judge appropriately addressed the appellant’s allegations of discrimination and reprisal only insofar as they relate d to the issue of voluntariness . ID at 17-18; Vitale v. Depart ment of Veterans Affairs , 107 M.S.P.R. 501, ¶ 20 (2007) (explaining that the Board addresses allegations of discrimination and EEO reprisal in connection with an alleged involuntary resignation only insofar as those allegations relat e to the issue of voluntariness ). Although the appellant indicated prior to the hearing that she was not raising discrimination claims, she has not shown how the administrative judge’s adjudication of those claims affected the outcome of this appeal . RAF, Tab 25 at 2; Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) (finding that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision). The administrative judge did not abuse her discretion with r egard to exhibits, witnesses , and scheduling the hearing . ¶15 The appellant also argues that the administrative judge improperly rejected some of her hearing exhibits , excluded witnesses, limited her testimony and 9 examination of witnesses , and delayed the hear ing. PFR File, Tab 1 at 5 -6. She asserts that these ruling s were inconsistent with her due process rights. Id. at 5. We find that the appellant’s contentions are without merit. ¶16 On October 5, 2016, t he parties agreed to dismiss the case without prejud ice after each party had a change in representation . IAF, Tab 59, Tab 61, Initial Decision. After redocketing the appeal, t he administrative judge rescheduled the hearing for May 17, 2016, at the request of the agency representative, who indicated that she had family obligations that precluded travel on the scheduled hearing date of May 5, 2016 . RAF, Tab 15 at 4, Tab 17. Although the appellant argues that the administrative judge improperly delayed the hearing for the agency representative’s “family out ings,” there is no evidence that the appellant objected to the change in hearing date . PFR File, Tab 1 at 6. The hearing went forward as scheduled on May 17 , 2016 , and continued to May 25, 2016 . RAF, Tabs 29, 31. Under these circumstances, we decline t o find that the administrative judge abused her discretion in delaying the hearing by less than a month. See Bergstein v. U.S. Postal Service , 28 M.S.P.R. 495, 497 (1985) (declining to find that a presiding official abused his discretion when he scheduled a hearing without first consulting with the appellant, and observing that it is common practice to schedule and reschedule hearin gs for a variety of circumstances); 5 C.F.R. § 1201.41 (b)(5) -(6) (reflecting that administrative judges have authority to hold and regulate hearings). ¶17 In fact , the appellant herself requ ested and received two extensions for filing her prehearing submissions . RAF, Tab s 11-12, 16-17. On review, she argues that the administrative judge improperly returned submissions because the appellant did not serve the agency, even though these submiss ions were accompanied by certificates of service. PFR File, Tab 1 at 5, 7-8; RAF, Tabs 14, 23, 35 -36. She does not provide copies of her certificates of service or any other evidence that she mailed these submissions to the agency. PFR File, Tabs 1, 11. Nor does she identify the documents that she believes the administrative judge 10 improperly excluded from evidence at the hearing , or explain why they should have been admitted. Id. Under these circumstances, we decline to find that the administrative ju dge abused her broad discretion on these matters. See McCarthy v. International Boundary & Water Commission , 116 M.S.P.R. 594, ¶ 24 (2011) (declining to find that an administrative judge abused his discretion by rejecting the appellant’s proffer of documents on the ground that they were not included as exhibits in his prehearing submissions), aff’d , 497 F. App’x 4 (Fed. Cir. 20 12); 5 C.F.R. § 1201.41 (b)(3), (8) (discussing the authority of administrative judges to, as pertinent here, rule on offers of proof and exhibit lists). ¶18 The appellant also appears to arg ue that she was only permitted four witnesses. However, the record reflects that the a dministrative judge approved 11 of the appellant’s 21 requested witnesses. RAF, Tab 22 at 2, Tab 25 at 2. Seven of these witnesses, plus the appellant, testified at th e hearing. PFR File, Tabs 29, 31. The appellant argues that the administrative judge did not approve the most relevant witnesses. PFR File, Tab 1 at 5. However, she does not explain the basis for her disagreement. Id. Finally, the appellant argues th at the administrative judge limited her to topics that the agency’s attorney “talked about,” and prematurely ended her testimony. Id. Because the appellant has failed to provide any specific arguments or record citations to substantiate her claims, we de cline to find that she has shown that the administrative judge improperly limited the witnesses or testimony. See Scoggins v. Department of the Army , 123 M.S.P.R. 592, ¶ 20 (2016) (finding that the administrative judge did not abuse her broad discretion in controlling the proceedings by limiting the agency’s cross -examination of the appellant); 5 C.F.R. § 1201.41 (b)(8) (providing that administrative judges have the authority to rule on witnesses). We also find that the administrative judge did not violate the appellant’s due process rights. See Stone v. F ederal Deposit Insurance Corporation , 179 F.3d 1368 , 1377 (Fed. Cir. 1999) (observing that the u ltimate inquiry in connection with an alleged due 11 process violation is whether it was “so substantial and so likely to cause prejudice that no employee can fairly be required to be subjected to a deprivation of prop erty under such circumstances”) . ¶19 Accordingly, we deny the appellant’s petition for review and affirm the initial decision dismissing her involuntary resignation appeal for lack of jurisdiction. NOTICE OF APPEAL RIG HTS6 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1 ). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summ ary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which case s fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular foru m is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S . Court of Appeals for the Federal Circuit, which must be received by the court 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 approp riate 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 petit ion for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional informa tion about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of P ractice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC re view of cases involving a claim of discrimination . This option applies to you only if you have claimed that 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 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, cost s, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.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 vi a commercial delivery or by a method requiring a signature, 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 Whi stleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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.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 wit hin the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 7 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the Pr esident on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 15 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal 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/CourtW ebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	MARIGNY_GLORIA_AT_0752_14_0737_I_2_FINAL_ORDER_1975861.pdf	2022-11-07	null	AT-0752	NP
3,952	https://www.mspb.gov/decisions/nonprecedential/SHU_DAVID_SF_0353_11_0065_X_1_FINAL_ORDER_1975891.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DAVID SHU, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER S SF-0353 -11-0065 -X-1 SF-0353 -11-0065 -C-1 DATE: November 7, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 David Shu , Santa Maria, California , pro se. Jessica Villegas and Jeremy M. Watson , San Francisco, California, 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 25, 2014 Order in Shu v. U.S. Postal Service , MSPB Docket No. SF -0353 -11-0065 -B-2. On December 21, 2016, 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 o rders, 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 B oard as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Board issued a non -final order finding the agency not in compli ance with its September 25, 2014 Order. Shu v. U.S. Postal Service , MSPB Docket No. SF-0353 -11-0065 -C-1, Order (Dec. 21, 2016) (Compliance Order) . 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 The appellant commenced work as a part -time flexible letter carrier for the agency on March 23, 2002. Shu v. U.S. Postal Service , MSPB Docket No. SF-0353 -11-0065 -I-1, Initial Appeal File ( IAF), Tab 3 at 7. On September 22, 2003, the appellant suffered a back injury that led to him being absent from work beginning on September 24, 2003. Id. at 4. On September 30, 2003, the agency informed the appellant that he was in absent without leave (AWOL) statu s and had been in an unscheduled absent status since September 24, 2003. Shu v. U.S. Postal Service , MSPB Docket No. SF -0353 -11-0065 -B-1, Remand File (B -1 RF) , Tab 17 at 5-8. On October 20, 2003, the appellant filed a workers’ compensation claim for his September 22 , 2003 injury. IAF, Tab 3 at 4-6. On November 7, 2003, the agency issued a Notice of Removal to the appellant based on a charge of Irregular Attendance/AWOL. IAF, Tab 6 at 40 -42. The appellant’s removal was effectuated December 12, 2003. I AF, Tab 3 at 4, Tab 6 at 38. ¶3 On March 14, 2008, the Office of Workers’ Compensation Programs (OWCP) issued a decision stating that the appellant was temporarily totally disabled between September 24 and October 15, 2003, and entitled to compensation for t his period. B-1 RF, Tab 16 at 16 -18. On March 1, 2009, the appellant requested that he be reinstated to employment with the agency, but on April 27, 2009, the agency rejected that request. Id. at 19 -20. On July 28, 2010, OWCP issued an additional decision finding that the appellant suffered from a compensable injury between September 23 and November 6, 2003. IAF, Tab 3 3 at 4-6. On August 27, 2010, the appellant requested that the agency resto re him to duty. IAF, Tab 6 at 6. The agency offered the appellant a carrier position in Santa Maria, California, and the appellant accepted, commencing work on November 6, 2010. IAF, Tab 21 at 1. ¶4 On October 25, 2010, the appellant appealed to the Board , alleging that the agency had denied him restoration to duty following his recovery from a compensable injury. IAF, Tab 1. Following various administrative appeals and remands, on September 25, 2014, the administrative judge issued an initial decision f inding that the agency’s delay in restoring the appellant to duty between March 1, 2009, and November 6, 2010, was an improper denial of restoration. Shu v. U.S. Postal Service , MSPB Docket No. SF -0353 -11-0065 -B-2, Remand File, Tab 40, Remand Initial Deci sion (RID) at 10 -13. The administrative judge instructed the agency to: re store the appellant as of March 1, 2009; pay the appellant the appropriate amount of back pay; provide the appellant with service credit for the entire period of absence, from Dece mber 12, 2003, to November 6, 2010, for the purposes of rights and benefits based on seniority and length of service pursuant to 5 C.F.R. § 353.107 ; and inform the appellant in writing of all actions taken to comply with the Board’s order. RID at 16-17. The remand initial decision became the final decision of the Board on October 30, 2014, after neither party petitioned the full Board for review. RID at 17. ¶5 On November 21, 2014, the app ellant filed a petition for enforcement of the September 25, 2014 remand initial decision. Shu v. U.S. Postal Service , MSPB Docket No. SF -0353 -11-0065 -C-1, Compliance File (CF), Tab 1. Over the course of multiple pleadings, the appellant alleged that the agency failed to comply with the remand initial decision by: (1) failing to provide the appellant with appropriate seniority status and service credit for the period between December 13, 2003, and November 6, 2010; (2) improperly removing him from servic e; and (3) failing to pay him the correct amount of back pa y and interest. CF, Tab 1 at 4-7, Tabs 26 -36. 4 ¶6 On June 29, 2016, the administrative judge issued a compliance initial decision granting the petition for enforcement in part. CF, Tab 49, Complia nce Initial Decision (CID). The administrative judge found that the agency was not in compliance because it failed to: (1) provide a sufficient explanation of the back pay check issued to the appellant; (2) provide an explanation of how it calculated the appellant’s step increase; (3) provide an explanation of how it arrived at the date of February 25, 2005 , for retirement service credit; and (4) properly withhold the appellant’s unemployment compensation withholding. CID at 8-17. Accordingly, the admin istrative judge ordered the agency to: (1) provide evidence that it paid the appellant all back pay, interest, and benefits for the back pay period, along with a narrative explanation of how the agency arrived at its calculations, with an accounting of an y deduc tions or other adjustments; (2) provide evidence that it credited the appropriate amount of retirement service to the appellant for the back pay period, with a narrative explanation of the amount of service; and (3) remit appropriate payment to the State of Nevada for the unemployment compensation withheld from the appellant’s back pay and provide evidence of such payment to the State of Nevada. CID at 17. ¶7 On August 18, 2016, the appellant filed a petition for review of the compliance initial dec ision. Compliance Petition for Review ( CPFR ) File, Tab 3. On December 21, 2016, the Board issued a nonprecedential, non -final order that denied the appellant’s petition for review and affirmed the compliance initial decision. Compliance Order at 5-11. The Board referred the matter to the Office of General Counsel to obtain compliance. Compliance Order at 11. ¶8 On August 26, 2016, the agency submitted a statement of compliance pursuant to 5 C.F.R. § 1201.183 (a)(6)(i). Shu v. U.S. Postal Service , MSPB Docket No. SF -0353 -11-0065 -X-1, Compliance Referral File (CRF), Tab 4. In its statement, the agency included a narrative summary explaining how the agency arrived at its back pay calculations, with an accounting for all deductions and other adjustments. Id. at 6-66. The agency’s submission also stated that the 5 appellant’s new service computation date would be considered February 11, 2005, and included an explanation as to how the agency reached that date. Id. at 46. However, the agency’s submission still lacked any explanation as to how the agency calculated the appellan t’s step increase for the back pay period, and further lacked any evidence showing that it remitted appropriate payment to the State of Nevada for unemployment compensation withheld from the appellant’s back pay. CRF, Tab 4. For the unemployment compensa tion, the agency indicated that it attempted to expedite the repayment process but was not able to so. Id. at 1-2. ¶9 On September 7 and September 9, 2016, the appellant filed submissions in response to the agency’s statement of compliance. In his pleadi ngs, the appellant put forward several arguments, many of which simply contested the findings from the compliance initial decision and the Board’s order following his petition for review of that decision regarding his entitlement to the unemployment funds, his seniority, and his leave balances. CRF, Tabs 9 -11. The appellant also argued, however, that the agency failed to provide any explanation for how it calculated his step increases, failed to account for the time he spent receiving OWCP compensation fo r his step increase calculation, and failed to prove it complied with the prior order regarding his unemployme nt compensation. CRF, Tab 9 at 9-15. On March 6, 2017, the appellant filed a second supplemental pleading, which contained evidence that he had been issued a Form 1099 for his prior unemployment compensation, implying that the agency may have paid this compensation directly to him rather than to the State of Nevada, as ordered by the Board. CRF, Tab 11 at 3 -4. ¶10 On July 31, 2017, the Board issu ed an order requesting further information from the agency. CRF, Tab 12. The Board ordered the agency to provide evidence indicating whether the agency had remitted the appellant’s unemployment funds to the State of Nevada or to the appellant directly, a nd to 6 provide a fuller explanation of how the agency calculated the appellant’s step increase date. Id. at 2-3. ¶11 On August 14, 2017, the agency filed a response to the Board’s July 31, 2017 Order. The agency stated in its response that it remitted the unemployment funds to the State of Nevada and included evidence to that effect. CRF, Tab 13 at 4, 6-8. The agency further stated that it was still working to reconstruct its narrative for the calculation of the appellant’s step increase date and would provide that information shortly thereafter. Id. at 4-5. On August 27, 2017, the appellant filed a reply to the agency’s response, which reiterated his arguments from his September 2016 pleadings. CRF, Tab 14 at 4 -28. ¶12 On February 1, 2018, the agency filed a submission addressing the appellant’s step increase date. CRF, Tabs 16 -17. The agency contended that its April 13, 2015 pleading submitted to the administrative judge during the initial compliance litigation suffic iently explained its initial step increase date calculation, even accounting for the time period during which the appellant received OWCP benefits. CRF, Tab 17 at 4 -8. With respect to that time period, the agency stated that while it did originally fail to include that time period in its initial step increase date calculation, its revised calculations accounting for the OWCP time period did not result in any change to the appellant’s step increase date. Id. at 5 -8. The agency included evidence in suppor t of its assertion regarding the OWCP time period. Id. at 9-35. ¶13 On February 7, 2018, the appellant replied to the agency’s submission. CRF, Tab 18. The appellant stated that the agency’s assertions as to what days the appellant was previously on leave without pay (LWOP) status were incorrect and provided evidence in support of his claim. Id. at 4-12. The appellant further argued that the agency’s incorrect assessment of his LWOP status led to an incorrect calculation of his step increase date. Id. at 4-5. ¶14 On May 10, 2018, the Board issued a second order requesting further information from the agency. CRF, Tab 19. The order noted that the agency’s 7 evidence, in the form of the appellant’s time and attendance statements, did not appear to reflect th e appellant’s time spent in a non -pay status, as claimed by the agency. Id. at 1-2. The Board thus ordered the agency to provide evidence establishing that the appellant was, in fact, in a non -pay status during the time periods asserted. Id. ¶15 On July 3, 2018, the agency filed a submission responsive to the Board’s May 10, 2018 Order. CRF, Tab 26. The pleading contained additional explanation and evidence about the appellant’s time and attendance statements establishing how the statements demonstrated the appellant’s non -pay status for the previously asserted time periods. Id. at 4-15. On July 4, 2018, the appellant replied to the agency’s pleading, arguing that the agency’s evidence did not establish him as specifically being on LWOP status during t he time periods in question. CRF, Tab 27 at 4 -9. ¶16 On August 2, 2018, the Board issued a third order requesting further information from the agency. CRF, Tab 28. The order requested additional information from the agency about its step increase policy an d how it operated for employees not in LWOP status but still in non -pay status. Id. at 1 -2. On August 16, 2018, the agency filed a new submission that explained how employee step increases are calculated for employees in non -pay status and included evide nce supporting its explanation. CRF, Tab 29 at 4 -67. On August 18, 2018, the appellant replied to the agency’s submission, repeating his argument that his step increase date should not have been deferred because of his non -pay status. CRF, Tab 30 at 4-18. ¶17 On July 3, 2021, the appellant filed additional documentation related to his 2015 removal by the agency. CRF, Tab 33. On July 6, 2021, the appellant filed in MSPB Docket No. SF -0353 -11-0065 -C-1 a motion for leave to submit the same additional document s in that docket number , arguing that these documents were not previously available to him. CPFR File, Tab 13 at 3. 8 ANALYSIS ¶18 When the Board finds a personnel action unwarranted or not sustainable, it orders that the appellant be placed, as nearly as poss ible, in the situation he would have been in had the wrongful personnel action not occurred. House v. Department of the Army , 98 M.S .P.R. 530 , ¶ 9 (2005). The agency bears the burden to prove its compliance with a Board order. An agency’s assertions of compliance must include a clear explanation of its compliance actions supported by documentary evidence. Vaughan v. Department of Ag riculture , 116 M.S.P.R. 319, ¶ 5 (2011). The appellant may rebut the agency’s evidence of compliance by making “specific, nonconclusory, and supported assertions of continued noncompliance.” Brown v. Office of Personnel Management , 113 M.S.P.R. 325 , ¶ 5 (2010). ¶19 The agency’s outstanding compliance issues were its obligations to: (1) provide a narrative explanation of its back pay calculations; (2) explain the appellant’s step increase date; (3) demonstrate that it remitted unemployment compensation to the State of Nevada; and (4) provide the appropriate amount of retirement service credit to the appellant. The agency’s combined submissions show that the agency has now reached full compliance on all of these issues. The agency has provided a sufficient narrative explaining all of its back pay calculations. CRF, Tab 4 at 6 -39. The agency also satisfactorily explained how it determined the appellant’s step increase for the back pay period, including an explanation of how the appellant’s non -pay status a ffected the calculation of his step increase date. CRF, Tab 17 at 4 -35, Tab 26 at 4 -15, Tab 29 at 4 -67. The agency further provided sufficient evidence that it remitted appropriate payment to the State of Nevada for the unemployment compensation withheld from the appellant’s back pay. CRF, Tab 13 at 4, 6 -8. Finally, the agency provided satisfactory evidence showing that it credited the appropriate amount of retirement service to the appellant for the back pay period, along with a narrative explanation o f how it arrived at that amount. CRF, Tab 4 at 46. 9 ¶20 We have considered the appellant’s objections to the agency’s pleadings, but do not find any of the appellant’s arguments to be meritorious. As stated above, each of the arguments appear to only const itute challenges to the findings of the compliance initial decision. Because these arguments were either already considered and rejected by the Board in its December 21, 2016 Order, or were available to the appellant but not raised in his petition for rev iew, they will not be considered again here. Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980). As to the appellant’s other argument regarding non -pay status and its effect on his step increase date, the agency’s submissions demonstrate that the agency correctly calculated the step increase date. Specifically, the agency’s August 16, 2018 submission explains that, while the appellant may have been in varying types of non -pay status during the time periods in question, each type of non-pay status had the same effect of delaying the appellant’s step increase date by the amount of time spent in non -pay status. CRF, Tab 29 at 4 -9, 15, 18 -19. ¶21 Finally, with respect to the appellant’s July 6, 2021 motion for leave in MSPB Docket No. SF -0353 -11-0065 -C-1, the documents submitted all relate to the appellant’s 2015 removal, which, as noted in the Board’s December 21, 2016 Order, is not before th e Board in the present matter.2 ¶22 Accordingly, in light of the foregoing, 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. T itle 5 of the Code of Federal Regulations, section 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)). 2 The appellant filed a separate appeal of his removal in MSPB Docket No. SF -0353 -15- 0515 -I-1. On December 2, 2016, the Board issued a final decision dismissing the appellant’s removal appeal for lack of jurisdiction. Shu v. U.S. Postal Service , MSPB Docket No. SF -0353 -15-0515 -I-1 Final Order (Dec. 2, 2016) . That decision was affirmed by the Uni ted States Court of Appeals for the Federal Circuit on May 12, 2017. Shu v. Merit Sys tems Prot ection Board, 689 Fed. Appx. 971, 974 (Fed. Cir. 2017). 10 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 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). If you submit a petition for 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 rev iew rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 11 U.S. Court of Appeals for the Federal Circuit 717 Madi son Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and A ppellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will acce pt representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that 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 12 to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact informat ion for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any s uch request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your repres entative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 13 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.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 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 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court o f appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 14 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case . Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/Cour tWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SHU_DAVID_SF_0353_11_0065_X_1_FINAL_ORDER_1975891.pdf	2022-11-07	null	S	NP
3,953	https://www.mspb.gov/decisions/nonprecedential/STUYCK_ROBERT_A_DC_0432_14_0559_I_1_FINAL_ORDER_1975922.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ROBERT A. STUYCK, Appellant, v. DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER DC-0432 -14-0559 -I-1 DATE: November 7, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Robert A. Stuyck , Wichita Falls, Texas, pro se. Mark Claytor , Fort Lee , Virginia, for the agency . BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed as settled his appeal of his removal for alleged unsatisfactory performance. For the reasons set forth below, the appellant’s petition for review 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 is DISMISSED as untime ly filed without good cause shown. 5 C.F.R. § 1201.114 (e), (g). ¶2 While the underlying appeal was pending, the parties executed a settlement agreement that, inter alia, provided for the d ismissal of the appeal with prejudice. Initial Appeal File (IAF), Tab 27. The administrative judge found that the appeal was within the Board’s jurisdiction, the agreement was lawful on its face, it was freely reached, and the parties understood its term s. Initial Decision (ID) at 1 -2. He entered the agreement into the Board’s record for enforcement purposes and dismissed the appeal. Id. Additionally, the initial decision informed the parties that it would become the Board’s final decision on August 1 0, 2015 , unless a petition for review were filed by that date. ID at 2 -3. ¶3 On August 30, 2016, the appellant filed a petition for review more than 1 year out of time. Petition for Review (PFR) File, Tab 1. The Office of the Clerk of the Board informed th e appellant that his petition for review appeared to be untimely filed and instructed him to submit evidence and argument showing that the petition for review was timely filed or that good cause existed for the delay in filing. PFR File , Tab 2. In response, the appellant submitted a Motion to Accept Filing as Timely and/or to Ask the Board to Waive or Set Aside the Time Limit in which he asserted that his appeal was pending below for more than 1 year, during which time he suffered from an allegedly hostile work environment that exacerbated his preexisting clinical depression; by the time the administrative judge turned his attention to the appellant’s appeal, the appellant “had very little faith in the government to include the MSPB ,” and so he decid ed to settle his appeal. PFR File, Tab 3 at 4. The appellant further alleged that he had a strong likelihood of prevailing on the merits of his appeal and, if he had not had to wait so long for his appeal to be adjudicated , he would not have settled. Id. The agency has not responded to the petition for review. 3 ¶4 The Board will waive the time limit for filing a petition for review only upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114 (g). To establish good cause for the untimely filing of a petition for review , a party must show that he exercised due diligence or ordinary prudence under the particular circumstances of the case. See Alonzo v. Department of the Ai r Force , 4 M.S.P.R. 180, 184 (1980). To consider whether a party has shown good cause, the Board will consider the length of the delay, the reasona bleness of his excuse and his showing of due diligence, whether he is proceeding pro se, and whether he has presented evidence of the existence of circumstances beyond his control that affected his ability to comply with the time limits or of unavoidable c asualty or misfortune which similarly shows a causal relationship to his inability to timely file his petition. Moorman v. Department of the Army , 68 M.S.P.R. 60 , 62-63 (1995), aff’d , 79 F.3d 1167 (Fed. Cir. 1996) (Table). ¶5 The appellant asserts that he was frustrated by the length of time it took for the administrative judge to address his appeal and that this caused him to get discouraged and settle his case. PFR File, Tab 3 at 4. This is an argument concerning the merits of the petition for review and does not relate to t he reason the appellant could not have filed his petition for review in a timely manner. ¶6 The appellant states that he suffers from depression and he may be attempting to claim that his med ical condition prevented him fro m meeting the Board’s filing deadlin e. Id. at 1. To establish that an untimely filing was the result of a n illness, the party must: (1) i dentify the time period during which he suffered from the illness; (2) submit medical evidence showing that he suffered from the alleged illness d uring that time period; and (3) explain how the illness prevented him from timely filing his appeal or a request for an extension of time. Lacy v. Department of the Navy , 78 M.S.P.R. 434 , 437 (1998). To establish good cause for waiv ing of the Board’ s filing deadline based on physical or mental illness, there is no general incapacitation requirement; rather, the appellant is 4 required to exp lain only why his alleged illness impaire d his ability to meet the Board’ s filing deadline or seek an extension of time. Lacy , 78 M.S.P.R. at 437 n.*. ¶7 The appellant has offered scant medical documentation in support of his apparent claim that a medical condition prevented him from meeting the filing deadline. With his petition for review , he submits a reasonable accommodation form completed by his physician in 2012 that notes that the appellant has a low threshold for frustration and difficulty maintain ing focus. PFR File, Tab 3 at 7-10. The physician further states that the appellant’s prognosis was excellent and that he expected the appellant to make a full recovery. Id. at 7. This evidence sheds no light on the appellant’s medical condition betwee n approximately August 2015 and August 2016 and does not explain why the appellant could not timely file his petition for review . ¶8 The Board has found good cause when an appellant submitted medical evidence providing a detailed explanation of how his illness affected his ability to meet the filing deadline, including evidence that he was unable to understand, remember, and carry out very short, simple instructions; unders tand, remember, and carry out detailed instructions; perform activities within a schedule; be punctual within customary tolerances; and ask simple questions or request assistance. See Smith v. Office of Personnel Management , 117 M.S.P.R. 527, ¶ 8 (2012). In contrast, when an appellant established that he had torn cartilage in his shoulder but did not explain how that condition prevente d him from timely filing his appeal, the Board did not find good cause. Pirkkala v. Department of Justice , 123 M.S.P.R. 288 , ¶ 20 (2016) . The appellant’s evidence more closely resembles that in Pirkkala in that it does not relate the appellant’s medical conditions to his ability to file his petition for review on time. ¶9 Accordingly, we dismiss the petition for review as untimely f iled. This is the final decision of the Merit Systems Protection Board regarding the timeliness 5 of the petition for review. The initial decision remains the final decision of the Board regarding the dismissal of the appeal as settled. NOTICE OF APPEAL R IGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summar y of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is mo st appropriate in any matter. 6 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional 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 7 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 i ssues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 8 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegat ions of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place , N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants ,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 9 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www. mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept repres entation 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.uscourt s.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	STUYCK_ROBERT_A_DC_0432_14_0559_I_1_FINAL_ORDER_1975922.pdf	2022-11-07	null	DC-0432	NP
3,954	https://www.mspb.gov/decisions/nonprecedential/SMITH_MARCUS_D_AT_0752_05_0901_X_3_FINAL_ORDER_1974934.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MARCUS D. SMITH, Appellant, v. DEPARTMENT OF TRANSPORTATION, Agency. DOCKET NUMBERS AT-0752 -05-0901 -X-3 AT-0752 -05-0901 -X-4 DATE: November 3, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Elaine L. Fitch , Esquire, Washington, D.C., for the appellant. Brian A. Price , Des Plaines, Illinois, for the agency. Jennifer D. Ambrose , Esquire and Russell B. Christensen , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 FINAL ORDER ¶1 The administrative judge issued two compliance initial decisions in these now joined cases, finding the agency in noncompliance with two separate Board orders instructing the agency to pay the appellant compens atory damages and attorney fees. For the reasons discussed below, we find the agency in compliance with both decisions and DISMISS the petitions for enforcement. DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶2 On April 25, 2012, the Board issued a final order adopting the finding of the Equal Employment Opportunity Commission that the agency retaliated against the appellant for his protected equal employment opportunity activity. Smith v. Department of Transpor tation , MSPB Docket No. AT -0752 -05-0901 -E-1, Final Order (Apr. 25, 2012) . The Board ordered the agency to cancel the appellant’s 30-day suspension, restore him to duty effective August 1, 2005, and provide him appropriate back pay, with interest, and bene fits. Id. The Board also forwarded the appellant’s compensatory damages claim to the appropriate Board regional office for adjudication. Id. ¶3 Following multiple spin -off cases and extensive litigation, the administrative judge issued two orders that fo rm the basis for the instant compliance enforcement actions. First, in the appellant’s second compensatory damages case, the administrative judge issued a June 13, 2017 decision ordering the agency to pay the appellant $14,653.50 in compensatory damages. Smith v. Department of Transportation , MSPB Docket No. AT -0752 -05-0901 -P-2, Compensatory Damages File, Tab 12, Initial Decision. Second, in the appellant’s third attorney fee case, the administrative judge issued a June 13, 2017 decision ordering the age ncy to pay the appellant $43,682.79 in attorney fees. Smith v. Department of Transportation , MSPB Docket No. AT -0752 -05-0901 -A-3, Attorney Fees File, Tab 6, Initial Decision. 3 ¶4 After the agency failed to pay either amount within the time prescribed, the appellant filed petitions for enforcement in the compensatory damages and attorney fees cases. Smith v. Department of Transportation , MSPB Docket No. AT-0752 -05-0901 -C-3, Compliance File (C -3 CF), Tab 1; Smith v. Department of Transportation , MSPB Docket No . AT -0752 -05-0901 -C-4, Compliance File (C -4 CF), Tab 1. On September 22, 2017, the administrative judge issued a compliance initial decision in the compensatory damages case, finding the agency noncompliant with the requirement that it pay $14,653.50 in compensatory damages. C -3 CF, Tab 7, Compliance Initial Decision. On October 5, 2017, the administrative judge issued a compliance initial decision in the attorney fees case, finding the agency noncompliant with the requirement that it pay $43,682.79 in a ttorney fees. C -4 CF, Tab 6, Compliance Initial Decision. ¶5 Pursuant to 5 C.F.R. § 1201.183 (a)(6)(i), governing submission of statements of compliance to the full Board, the agency filed separate statements regarding each compliance initial decision. On October 27, 2017, the agency submitted a narrative statement and evidence that it paid the appellant $14,653.50 by electronic transfer that same day, as required by the compliance initial decision in the compensatory damages case. Smith v. Department of Transportation , MSPB Docket No. AT -0752 -05-0901 -X-3, Compliance Referral File (X -3 CRF), Tab 1 at 4 -5. On October 30, 2017, the agency submitted a narrative statement and evidence that on September 28, 2017, it paid the appellant’s law firm $43,682.79, as required by the compliance initial decision in the attorney fees case. Smith v. Department of Transportation , MSPB Docket No. AT-0752 -05-0901 -X-4, Compliance Referral File (X -4 CRF), Tab 1 at 4 -5. The Board docketed these submissions as compliance referral matters, joined them, and issued a single acknowledgement order informing the appellant that he could file any response to the agency’s evidence of compliance within 20 calendar days. X-3 CRF, Tab 2 at 2; X -4 CRF, Tab 2 at 2. 4 ¶6 On November 17, 2017, the appellant filed his response. The appellant acknowledged receipt of the compensatory damages and attorney fee payments and did not contest that the agency was in full compliance regardin g the latter. X-3 CRF, Tab 3 at 4; X -4 CRF, Tab 3 at 4. However, the appellant contended that the agency was not fully in compliance concerning the compensatory damages payment because the same -day wire transfer caused the appellant’s bank to charge him a $10 fee. According to the appellant, the agency thus effectively paid him $14,643.50, rather than $14,653.50, and the $10 difference caused the agency to remain noncompliant. X -3 CRF, Tab 3 at 4; X -4 CRF, Tab 3 at 4. ¶7 On June 1, 2018, the agency filed evidence that it reimbursed the appellant $10 for the fee charged by the bank. X -3 CRF, Tab 4 at 4 -5; X -4 CRF, Tab 4 at 4-5. The appellant did not file a response. ANALYSIS ¶8 When the Board finds a personnel action unwarranted or not sustainable, it orders that the appellant be placed, as nearly as possible, in the situation he would have been in had the wrongful personnel action not occurred. House v. Department of the Army , 98 M.S.P.R. 530 , ¶ 9 (2005). The agency bears the burden to prove its compliance with a Board order. An agency’s assertions of comp liance must include a clear explanation of its compliance actions supported by documentary evidence. Vaughan v. Department of Agriculture , 116 M.S.P.R. 319, ¶ 5 (2011). The appellant may rebut the agency’s evidence of compliance by making “specific, nonconclusory, and supported assertions of continued noncompliance.” Brown v. Office of Personnel Management , 113 M.S.P.R. 325 , ¶ 5 (2010). ¶9 As explained above, the agency has now provided evidence that it paid the appellant the compensatory damages and attorney fees ordered by the Board, plus $10 to compensate the appellant for a fee charged by his bank to accept the same -day wire transfer of the compensatory damages payment. The appellant has not challenged this evidence. Accordingly, we find the agency in complian ce and 5 dismiss the petitions for enforcement. This is the final decision of the Merit Systems Protection Board in these compliance proceedings. Title 5 of the Code 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 1201.20 3. 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 HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summ ary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which case s fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in th e notice, the Board cannot advise which option is most appropriate in any matter. 6 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular foru m is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S . Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petiti on for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional informat ion about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Pr actice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 rev iew of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 7 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed 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: 8 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 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raise s no challenge to the Board’s disposition of allegations of a prohibited 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). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Feder al Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 9 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of A ppeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the co urt’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SMITH_MARCUS_D_AT_0752_05_0901_X_3_FINAL_ORDER_1974934.pdf	2022-11-03	null	AT	NP
3,955	https://www.mspb.gov/decisions/nonprecedential/CUNNINGHAM_BENJAMIN_NY_3443_18_0200_I_1_FINAL_ORDER_1974946.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD BENJAMIN CUNNINGHAM, Appellant, v. ADMINISTRATIVE CONFE RENCE OF THE UNITED STATES , Agency. DOCKET NUMBER NY-3443 -18-0200 -I-1 DATE: November 3, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Benjamin Cunningham , Bronx, New York, pro se. Matthew Wiener , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL OR DER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous fi ndings of material fact; the initial decision is based on an erroneous 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or th e initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due dil igence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review . Except as expressly MODIFIED to clarify that the appellant failed to make a non frivolous allegation that the Board has jurisdiction over his appeal, we AFFIRM the initial decision. ¶2 On petition for review, the appellant resubmits documents already in the record and repeats his allegations that the agency banned him from its office building and refused to provide him with copies of its administrative decision regarding a fraud complaint that he had filed against a Federal judge. Petition for Review (PFR) File, Tab 1 at 4 -25; Initial Appeal File (IAF) , Tabs 4 -6.2 He does not allege tha t he was ever a Federal employee or applicant for employment or 2 After he filed his petition for review, the appellant attempted to submit two additional pleadings. PFR File, Tabs 3 -4. The Office of the Clerk of the Board advised the appellant that he could su bmit a motion requesting leave to file additional pleadings, explaining the nature and the need for the pleadings, and showing that the evidence was not readily available before the record closed. PFR File, Tab 4; see 5 C.F.R. § 1201.114 (a)(5), (k). The appellant subsequently filed a motion for leave to file an additional pleading in addition to his petition for review, asserting that the agency had failed to file any response to his ap peal or provide any documents regarding his administrative procedures with the agency. PFR File, Tab 5. He thereafter filed an additional pleading, which was rejected by the Office of the Clerk of the Board. PFR File, Tab 7. The appellant has failed to sufficiently explain the nature of the argument or evidence he wishes to file in his additional pleading, how this purported new evidence or argument changes the outcome of his appeal, or why he could not have submitted such documents in his petition for review. See Durr v. Department of Veterans Affairs , 119 M.S.P.R. 195 , ¶ 23 (2013); 5 C.F.R. § 1201.114 (a)(5) , (k) . Accordingly, the appellant’s motion is denied. 3 that he was subjected to an appealable action under 5 U.S.C. § 7512 . PFR F ile, Tab 1 at 4 -19. The appellant does not assert that he was entitled to a hearing or repeat his request for a hearing. Id. ¶3 Although an appellant bears the burden of proving by preponderant evidence3 that his appeal is within the Board’s jurisdiction, he is entitled to a jurisdictional hearing if he presents n onfrivolous allegations4 of Board jurisdiction. See Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325 , 329 (1994); 5 C.F.R. § 1201.56 (b)(2)(i)(A). The administrative judge erred in applying a preponderant evidence standard , rather than nonfrivolous allegation standard, and finding that the appellant was not entitled to a hearing because he had not established that the Board had jurisdiction over his appeal by preponderant evidence . IAF, Tab 7, Initial De cision at 2, 4. However, having reviewed the record, we find that the appellant has not presented nonfrivolous allegations of Board jurisdiction . PFR File, Tab 1 at 4 -19; IAF, Tabs 1, 4-6. Therefore, we find no material error in the dismissal of the appeal for lack of jurisdiction without holding a hearing .5 3 A preponderance of the evidence is that degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as suffic ient to find that a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q). 4 A nonfrivolous allegation is an assertion that, if proven, could establish the matter a t issue. 5 C.F.R. § 1201.4 (s). 5 The appellant filed three additional appeals, all of which were dismissed for lack of jurisdiction. Cunningham v. Office of Special Counsel , MSPB Docket No. NY -3443 - 17-0015 -I-1, Initial Decision (Nov. 18, 2016); Cunningham v. Office of Special Counsel , MSPB Docket No. NY -3443 -18-0055 -I-1, Initial Decision ( Feb. 27, 2018 ); Cunningham v. Office of Special Counsel , MSPB Docket No. NY -3443 -18-0201 -I-1, Initial Decision (Sept. 21, 2018). The appellant’s petitions for review of those three initial decisions will be resolved separately. 4 NOTICE OF APPEAL RIGHTS6 The initial dec ision, 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. (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). 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. 5 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “G uide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit , you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor war rants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to t he Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. distri ct court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017) . If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of 6 discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for 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 7 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of 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 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 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. 8 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	CUNNINGHAM_BENJAMIN_NY_3443_18_0200_I_1_FINAL_ORDER_1974946.pdf	2022-11-03	null	NY-3443	NP
3,956	https://www.mspb.gov/decisions/nonprecedential/STEIN_JASON_M_DC_0752_16_0729_I_1_FINAL_ORDER_1975121.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JASON M. STEIN, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER DC-0752 -16-0729 -I-1 DATE: November 3, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jason M. Stein , Akron , Ohio , pro se. Mark R. Higgins , Nor folk, 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 petiti on for review of the initial decision, which dismissed h is 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 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 p etitioner 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 . BACKGROUND ¶2 The appellant asserted, and the agency does not dispute, that he is a preference -eligible veteran. Initial Appeal File (IAF), Tab 1 at 1, Tab 4 at 3-4, Tab 7 at 4 -5. On July 27 , 2015 , the agency appointed him to the 2-year excepted -service position of GS-5 Electrical Engineer (Recent Graduate) . IAF, Tab 7 at 10-12. The agency made this appointment using its Pathways Recent Graduates Program (PRGP) appointment authority . Id. at 10-14. Eleven months into the appointment , the agency terminated the appellant for misconduct . Id. at 14-17. The appellant filed this appeal of his termination . IAF, Tab 1 at 1, 5. ¶3 The administrative judge issued a n order detailing , in pertinent part, the appellant’s jurisdictional burden as a preference -eligible excep ted-service appointee to show that he met the definition of “employee ” under 5 U.S.C. § 7511 (a)(1)( B). IAF, Tab 2 at 3-4, Tab 3 at 2 . After the parties responded, IAF, Tabs 4, 7, the administrative judge issued an initial decision dismiss ing the appeal for lack of jurisdiction without holding the appellant’s requested hearing , IAF, Tab 8, Initial Decision ( ID). Without making a finding as to whether he was a preference eligible, she concluded that the appellant could not meet the 3 statutory definition of “employee ” because he had less than 1 year of Federal service at the time of termination . ID at 2-3. She also found that, as an excepted -service appointee, he did not have a regulatory right to appeal his termination to the Board. ID at 3. ¶4 The appellant has timely petitioned for review by filing a lengthy submission in which he reargue s the merits of his termination , including his argument that the agency terminated him for his recommendations regarding how to improve the work environment. Petition for Review (PFR) File, Tab 1 ; IAF, Tab 1 at 5 . According to the appellant, the agency mistakenly viewed these ideas as a “partisan political a genda.”2 IAF, Tab 1 at 5. The agency has responded to the petition for review . PFR File, Tab 3. DISCUSSION OF ARGUME NTS ON REVIEW ¶5 The Board’ s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). Under 5 U.S.C. chapter 75, subchapter II, an individual who meets the definition of “employee” at 5 U.S.C. § 7511 (a)(1) generally has the right to challenge h is removal from the Federal service by filing an appeal with the Board. Maibaum v. Department of Veterans Affairs , 116 M.S.P.R. 234 , ¶ 9 (2011). The statute provides that, t o be considered an “employee” for the purposes of Board jur isdiction, a preference -eligible excepted -service appointee must complete 1 year of current continuous service , 5 U.S.C. § 7511 (a)(1)(B); Maibaum , 116 M.S.P.R. 234 , ¶ 9 , while a 2 The appellant also asserts that , during the proceedings below, the agency improperly served him by mail, even though he was a registered e -filer. PFR File, Tab 1 at 5; IAF, Tab 1 at 2. However, the agency’s pleadi ngs reflect that the agency submitted them electronically, and that the appellant automatically received electronic service as a result. E.g., IAF, Tab 7 at 19; see also 5 C.F.R. § 1201.14 (p)(1) (generally requiring that agencies and attorneys e -file pleadings in cases being adjudicated at the Board’s Washington Regional Office). Further, the appellant admits that he received the agency’s pleadings. Therefore, we decline to consider thi s argument further. PFR File, Tab 1 at 5. 4 nonpreference -eligible excepted -service trial or probationary appointee generally must complete 2 years of current continuous service under other than a temporary appointment of 2 years or less , 5 U.S.C. § 7511 (a)(1)(C) ; Martinez v. Department of Homeland Security , 118 M.S.P.R. 154 , ¶ 5 (2012). Here, the appellant was terminated 11 months into his 2-year appointment . IAF, Tab 1 at 1, 7 -8. Accordingly, the administrative judge correctly found that he is not an “employee” with a statutory right to appeal regardless of whether he was a preference eligible. ¶6 Further, the adm inistra tive judge correctly found that the appellant did not have a regulatory right to appeal under 5 C.F.R. § 315.806 . ID at 3. Some probationary employees have a limited regulatory right to appeal their terminations, including on the basis of discrimination for partisa n political reasons . 5 C.F.R. § 315.806 (b). However, this right is not available to employees , like the appellant, who are appointed to the excepted service . IAF, Tab 7 at 10 ; see Ramirez -Evans v. Department of Veterans Affairs , 113 M.S.P.R. 297, ¶ 10 (2010) (observing that the regulatory right to appeal under 5 C.F.R. § 315.806 generally applies only to individuals in the competitive service, and that an agency’s erroneous notice of appeal rights cannot expand the Board’s jurisdiction) ; 5 C.F.R. § 213.3402 (b) (listing the PRGP as an excepted -service appointment authority) . Although the agency informed the appellant in his termination notice that he had a regulatory ri ght of appeal, this information was in er ror because his appointment was to the excepted service . IAF, Tab 7 at 10-15. Therefore, the administrative judge properly declined to consider the appellant’s allegations that his termination was based on a “partisan political agenda .” IAF, Tab 1 at 5. ¶7 Finally, the appellant has offered multiple documents to support h is petition for review. PFR File, Tab 1 at 8-94. Even assuming these documents are new evidence, w e decline to consider them because the ap pellant has not shown that the information they contain was not available below despite his due diligence. 5 See 5 C.F.R. § 1201.115 (d) ( providing that the Board may grant a petition for review based on new and material evidence that, despite the petitioner’s due diligence , was not available when the record closed below ). In addition , this evidence , which includes pictures of candles, a job description, a Department of Agriculture bulletin on underground plant design and construction , and articles on psychology, is also not material to the dispositive jurisdiction al issue . Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980) (observing 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 decisio n). Accordingly, we affirm the initial decision . NOTICE OF APPEAL RIG HTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which 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 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 6 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain 7 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, 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 the ir respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your rep resentative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EE OC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 8 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2 302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Cir cuit, you must submit your petition to the court at the following address: 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 l aw by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 9 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 websi tes, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	STEIN_JASON_M_DC_0752_16_0729_I_1_FINAL_ORDER_1975121.pdf	2022-11-03	null	DC-0752	NP
3,957	https://www.mspb.gov/decisions/nonprecedential/SPENCER_LAVENA_A_DC_1221_17_0286_W_1_FINAL_ORDER_1975193.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD LAVENA A. SPENCER, Appellant, v. DEPARTMENT OF LABOR, Agency. DOCKET NUMBER DC-1221 -17-0286 -W-1 DATE: November 3, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Martin F. McMahon , Esquire, Washington, D.C., for the appellant. Nnenne U. Agbai , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has petitioned for review of the February 23, 2017 in itial decision in this appeal. Initial Appeal File (IAF), Tab 13, 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 Petition for 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 submitt ed documents entitled “NOTICE OF GLOBAL SETTLEMENT” and “SETTLEMENT AGREEMENT” signed and dated by the appellant on September 13, 2020, and by the agency on September 14, 20320. PFR File, Tab 5. The document provides, among other things, that the appella nt agreed to withdraw the above -captioned appeal in exchange for the promises made by the agency. 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 prior finding of Board jurisdiction over the underlying matter being settled). ¶4 Here, we find that the parti es have entered into a settlement agreement and that they understand its terms. We further find that the parties do not intend to enter the settlement agreement into the record for enforcement by the Board, as the agreement instead provides for enforcemen t through the equal employment opportunity procedures set forth at 29 C.F.R. § 1614.504 .2 PFR File, Tab 5 2 In response to an e -Appeal prompt when submitting the settlement agreement in this appeal, th e agency indicated that the parties agreed that the settlement agreement would be entered into the record for enforcement by the Board. PFR File, Tab 5 at 3. 3 at 7-8; see Grubb v. Department of the Interior , 76 M.S.P.R. 639 , 642 -43 (1997) (finding that the parties intended the Equal Employment Opportunity Commission, not the Board, to enforce a settlement agreement tha t provided for enforcement in accordance with 29 C.F.R. § 1614.504 ). 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 enforcement by the Board. ¶5 In light o f the foregoing, we find that dismissing the appeal “with prejudice to refiling” (i.e., the parties normally may not refile this appeal) is appropriate under these circumstances. This is the final decision of the Merit Systems Protection Board in this app eal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R. § 1201.113 ). NOTICE OF APPEAL RIG HTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their However, the settlement agreement itself provides that, in the event of a breach, the parties ma y seek enforcement of the agreement before the Equal Employment Opportunity Commission pursuant to 29 C.F.R. § 1614.504 . Id. at 7-8. As the words of the agreement itself are of paramount importance in determining the intent of the parties at the time they contracted, we find that the parties did not intend the settlement agreement to be entered into the record for enforcement b y the Board but instead for the appellant to pursue enforcement through the alternate process specified in the agreement. See Greco v. Department of the Army , 852 F.2d 558 , 560 (Fed. Cir. 1988). 3 Since the issuance of the initial decision in this 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 jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and re quirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read 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 P lace, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appell ants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http:// www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 5 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept re presentation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of you r discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your repres entative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other i ssues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file 6 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial revie w pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 Fed eral 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, sign ed 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. 7 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” whic h is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.go v/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representatio n in a given case. 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/C ourt_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SPENCER_LAVENA_A_DC_1221_17_0286_W_1_FINAL_ORDER_1975193.pdf	2022-11-03	null	DC-1221	NP
3,958	https://www.mspb.gov/decisions/nonprecedential/HARRIS_KIMBERLY_DC_0752_16_0366_I_1_FINAL_ORDER_1974601.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD KIMBERLY HARRIS, Appellant, v. DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER DC-0752 -16-0366 -I-1 DATE: November 2, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Stephen Christopher Swift , Esquire, Ale xandria, Virginia, for the appellant. Whitney Krause , Esquire, Chantilly, Virginia, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her removal appeal for failure to prosecute. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of 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 requi red 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 establ ished any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Boar d’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 On February 19, 2016, the appellant filed a Board appeal challenging her removal from Federal service by the Defense Co ntract Management Agency for her acknowledged failure to obtain “Le vel II” certification within 24 months of her entry on duty. Initial Appeal File (IAF), Tab 1 at 5. She requested a hearing. Id. at 2. On February 25, 2016, the administrative judge informed the parties that, if they wished to engage in discovery, then initial requests or motions must be served on the other party within 30 calendar days of the date of the order. IAF, Tab 3 at 3. The appellant did not engage in discovery. IAF, Tab 11 at 1. ¶3 On August 12, 2016, the administrative judge ordered the parties to file prehearin g submissions on or before September 2, 2016, and scheduled a telephonic prehearing conference for September 6, 2016. IAF, Tab 27 at 1, 3. The administrative judge also advised the appellant that failure to participate in the prehearing conference withou t a demonstration of good cause would result in the dismissal of the appeal for failure to prosecute or other sanctions. Id. at 4. 3 The appellant did not submit a prehearing submission, nor did she appear for the prehearing conference.2 IAF, Tab 31 at 1. ¶4 Thereafter, the administrative judge issued an Order and Summary of Prehearing Conference, which denied the appellant’s request for a hearing as a sanction for her failure to file a prehearing submission and appear at the prehearing conference. Id. She also afforded the appellant 2 weeks to show cause why her appeal should not be dismissed for failure to prosecute, noting that, if the appellant failed to respond, she would dismiss the appeal. Id. The appellant again failed to respond. ¶5 On October 3, 2 016, the administrative judge issued an initial decision dismissing the appeal for failure to prosecute, finding that dismissal was appropriate because the appellant did not appear for the prehearing conference, did not show good cause for her failure to p articipate in the prosecution of her appeal, and failed to exercise due diligence in c omplying with orders. IAF, Tab 33, Initial Decision (ID) at 3. ¶6 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has fi led an opposition to the petition, to which the appellant has replied.3, 4 PFR File, Tabs 5 -6. 2 In the Order and Summary of Prehearing Conference, the administrative judge mistakenly identi fied the date of the prehearing confere nce as June 14, 2016. IAF, Tab 31 at 1. It appears that this was a typographical error and that the prehearing conference was held on September 6, 2016. IAF, Tab 32. 3 After the close of record on review, the appe llant filed a motion to submit an additional pleading. PFR File, Tab 8. In a letter acknowledging the appellant’s request, the Office of the Clerk of the Board advised her that the Board’s regulations do not provide for such additional pleadings and that , for the Board to consider the proffered submission, she must describe the nature and need for it , and also must show that the evidence was not readily available before the record closed. PFR File, Tab 9; see 5 C.F.R. § 1201.114 (a)(5), (k). The appellant made no such showing in her submission. Therefore, we deny the appellant’s request. 4 On February 28, 2019 , the appellant filed a pleading with the Board seeking to withdraw her peti tion for review. PFR File, Tab 11. Thereafter, on February 28 and March 28, 2019 , the Office of the Clerk of the Board issued orders requiring the 4 DISCUSSION OF ARGUME NTS ON REVIEW ¶7 The sanction of dismissal with prejudice may be imposed if a party fails to prosecute or defend an appeal. Leseman v. Depar tment of the Army , 122 M.S.P.R. 139 , ¶ 6 (2015); 5 C.F.R. § 1201.43 (b). Such a sanction should be imposed only when (1) a party has failed to exercise basic due diligence in comp lying with Board orders or (2) a party has exhibited negligence or bad faith in its efforts to comply. Leseman , 122 M.S.P.R. 139 , ¶ 6. When, as here, an appellant’s repeated failure to respond to multiple Board orders reflects a failure to exercise basic due dilige nce, the sanction of dismissal for failure to prosecute is appropriate. Williams v. U.S. Postal Service , 116 M.S.P.R. 377 , ¶ 9 ( 2011). Absent an abuse of discretion, the Board will not reverse an administrative judge’s determination regarding sanctions. Leseman , 122 M.S.P.R. 139 , ¶ 6. ¶8 Here, the record reflects that the appellant failed to engage in discovery, failed to file prehearing submissions as ordered by the administrative judge, failed to appear for a telephonic prehearing conference, and failed to f ile a response when the administrative judge informed the appellant that her appeal would be dismissed for failure to prosecute absent a showing of good cause. IAF, Tabs 27, 31; ID at 2 -3. The Board has upheld dismissals for failure to prosecute in simil ar situations. See, e.g ., Leseman , 122 M.S.P.R. 139 , ¶¶ 3-4, 7 (upholding a dismissal for failure to prosecute after the appellan t failed to appear at two conferences, failed to submit a close of record submission, and failed to respond to an order to show cause). Despite warning s that a failure to abide by the appellant to confirm her intent to withdraw the petition for review and her understanding that any withdraw al is with prejudice to refiling with the Board. PFR File, Tabs 12 -13. Because the appellant failed to respond, the Office of the Clerk of the Board informed her that it would take no further action regarding the withdrawal request and the Board would is sue a decision on her petition for review upon restoration on a quorum. PFR File, Tab 1 4. The appellant has taken no further action to effect the withdrawal of her petition and, to the contrary, has designated a new attorney to represent her in this matt er. PFR File, Tab 15. Thus, we address the merits of t he petition for review. 5 Board’s orders would result in a dismissal for failure to prosecute, th e only contact the appellant made with the Board after the appeal returned from unsuccessful mediation was the filing of the petition for review. IAF, Tab 26, Tab 27 at 4, Tab 31 at 1; ID at 2 -3. ¶9 On review, the appellant argues that her attorney is to b lame for the failure to prosecute . PFR File, Tab 1 at 4 -5, Tab 6. An appellant is generally responsible for the errors or inaction of her chosen representative. See Sofio v. Internal Revenue Service , 7 M. S.P.R. 667 , 670 (1981). The Board will not, however, penalize an appellant when her representative thwarts her diligent efforts to prosecute her appeal. See, e.g. , Shavers v. U.S. Postal Servic e, 52 M.S.P.R. 187 , 190 (1992). Here, the record shows that the appellant was personally served by electronic mail with the relevant or ders to which she did not respond. IAF, Tabs 27, 31. Further, she has submitted with her petition for review an email from her former attorney informing her that he would not be representing her in her Board appeal and that she should inform the Board th at she would be representing herself. PFR File, Tab 1 at 8. This email is dated prior to the deadline for prehearing submissions, the date of the prehearing conference, and the administrative judge’s order to show cause why her appeal should not be dismi ssed for failure to prosecute. IAF, Tab 27, Tab 29, Tab 31 at 1. We find that the appellant has not demonstrated she acted diligently under the circumstances and that her allegations regarding her former attorney do not provide a basis for disturbing the initial decision. See Shavers , 52 M.S.P.R. at 190-91 (finding that the appellant’s unwarranted belief that his representative was pursuing his appeal was not a proper basis for a finding of due diligence). ¶10 The appellant also continues to argue the merit s of the underlying removal action. PFR File, Tab 1 at 4 -5, Tab 6. However, the merits of the underlying matter do not bear on the dispositive issue in this appeal —the dismissal of the appeal based on a failure to prosecute. See Bennett v. Department of the Navy , 1 M.S.P.R. 683 , 688 (1980) (concluding that an appellant’s argument regarding 6 the merits of the underlying agency action was not determinative of the propriety of a dismissal for failure to prosecute). The record does not show that the administrative judge abused her discretion in dismissing the appeal with prejudice for failure to prosecute. ¶11 Based on the foregoing, we agree with the administrative judge’s finding that dismissal with prejudice was an appropriate sanction, and we further find that the appellant failed to exercise basic due diligence in prosecuting her appeal. Accordingly, we affirm the initial decision’s dismissal with prejudice for failure to prosecute. 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 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 contact that forum for more information. 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, th e 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 receiv ed by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circ uit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants be fore the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that 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/Co urtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail , the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: 9 Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option app lies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 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.6 The court of app eals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Ap peals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit o r any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 10 Additional information about the U.S. Court of Appeals f or the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Prot ection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	HARRIS_KIMBERLY_DC_0752_16_0366_I_1_FINAL_ORDER_1974601.pdf	2022-11-02	null	DC-0752	NP
3,959	https://www.mspb.gov/decisions/nonprecedential/CUNNINGHAM_BENJAMIN_NY_3443_18_0201_I_1_FINAL_ORDER_1974644.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD BENJAMIN CUNNINGHAM, Appellant, v. OFFICE OF SPECIAL CO UNSEL, Agency. DOCKET NUMBER NY-3443 -18-0201 -I-1 DATE: November 2, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Benjamin Cunningham , Bronx, New York, pro se. Amy Beckett , 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 for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of materia l fact; the initial decision is based on an erroneous 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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 interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decisio n were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not a vailable when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to clarify that the appellant failed to make a nonfrivolous allegation that the Board has jurisdiction over his appeal, we AFFIRM the initial decision. ¶2 On review, the appellant repeats his allegations that the agency refused to release its administrative dec ision regarding a fraud complaint that he had filed against a Federal judge and banned him from the building. Petition for Review (PFR) File , Tab 1 at 4 -25.2 His petition for review and reply to the agency’s response largely duplicate documents already i n the record. PFR File , Tab 1 at 4-25, Tab 4 at 2 -26; Initial Appeal File (IAF), Tabs 1, 4 -5. He does not allege that he is a current or former Federal employee or applicant for employment, or that he was subjected to an appealable acti on under 5 U.S.C. § 7512 . PFR F ile, Tab 1 at 4 -19, Tab 4 at 2 -13. The appellant does not repeat his request for a hearing or argue that the administrative judge erred in not granting him a hearing . PFR File, Tab 1 at 4 -19, Tab 4 at 2 -13. 2 After he filed his petition for review and reply to the agency’s response, the appellant attempted to submit three additional pleadings. PFR File, Tabs 5 -7. Pleadings allowed on review include a pet ition for review, a cross petition for review, a response to a petition for review, a response to a cross petition for review, and a reply to a response to a petition for review. 5 C.F.R. § 1201.114 (a). Because the appellant failed to file a motion with and obtain leave from the Clerk of the Board prior to filing his additional pleadings, they were rejected and returned to him without consideration. See 5 C.F.R. § 1201.114 (a)(5); PFR File, Tabs 5 -7. 3 ¶3 Although an appellant bears the burden of proving by preponderant evidence3 that his appeal is within the Board’s jurisdiction, he is entitled to a jurisdictional hearing if he presents nonfrivolous allegations4 of Board jurisdict ion. See Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325 , 329 (1994); 5 C.F.R. § 1201.56 (b)(2)(i)(A). The administrative judge erred in applying a preponderant evidence standard, rather than nonfrivolous allegation standard, and finding that the appellant was not entitled to a hearing because he had not established that the Board had jurisdict ion over his appeal by preponderant evidence . IAF, Tab 11 , Initial Decision at 2, 4. However, having reviewed the record, we find that the appellant has not presented nonfrivolous allegations of Board jurisdiction . PFR File, Tab 1 at 4-19, Tab 4 at 2 -13; IAF, Tabs 1, 4-5. Therefore, we find no material error in the dismissal of the appeal for lack of jurisdiction without holding a hearing.5 NOTICE OF APPEAL RIGHTS6 The initial decision, as supplemented by this Final Order, constit utes 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 3 A preponderance of the evidence is that degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q). 4 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4 (s). 5 The appellant filed three additional appeals, all of which were dismissed for lack of jurisdiction. Cunningham v. Office of Special Counsel , MSPB Docket No. NY -3443 - 17-0015 -I-1, Initial Decision (Nov. 18, 2016); Cunningham v. Office of Special Counsel , MSPB Docket No. NY -3443 -18-0055 -I-1, Initial Decision ( Feb. 27, 2018 ); Cunningham v. Administrative Conference of the United States , MSPB Docket No. NY-3443 -18-0200 -I-1, Initial Decision (Sept. 24, 2018). The appellant’s petitions for review of those three in itial decisions will be resolved separately. 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. 4 your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the foll owing 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 applic able time limit may result in the dismissal of your case by your chosen forum. Please read 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 parti cular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information 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 Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar da ys after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 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 review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 2 0013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washingto n, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the B oard’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of 7 competent jurisdiction.7 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 7 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeal s of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 8 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	CUNNINGHAM_BENJAMIN_NY_3443_18_0201_I_1_FINAL_ORDER_1974644.pdf	2022-11-02	null	NY-3443	NP
3,960	https://www.mspb.gov/decisions/nonprecedential/ANDERSON_EVELYN_A_DA_0752_13_0106_I_1_FINAL_ORDER_1974723.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD EVELYN A. ANDERSON, Appellant, v. DEPARTMENT OF THE NA VY, Agency. DOCKET NUMBER DA-0752 -13-0106 -I-1 DATE: November 2, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Evelyn A. Anderson , Grand Prairie, Texas , pro se. Ashley Rutherford , Naval Air Station Jacksonville, Florida, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed the agency’s removal action. For the reasons set forth below, the 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 administrative judge issued a March 28, 2013 initial decision in which he affirmed the appellant’s removal. Initial Appeal File, Tab 19, Initial Decision (ID). The initial decision i nformed the parties that it would become the final decision of the Board on May 2, 2013 , unless a petition for review were filed by that date. ID at 6. On April 3, 2017, the appellant filed a petition for review nearly 4 years out of time. Petition for Review (PFR) File, Tab 1. The Office of the Clerk of the Board informed the appellant that her petition for review appeared to be untimely filed and instructed her to submit evidence and argument showing that the petition for review was timely filed or that good cause existed for the delay in filing. PFR File , Tab 2. In response, the appellant submitted a Motion to Accept Filing as Timely and/or to Ask the Board to Waive or Set Aside the Time Limit in which s he asserted that she had “reached out” to the “Judicial Review Board” in April 2013, as well as the Department of Labor and Department of Justice, but was unable to obtain any assistance. PFR File, Tab 4 at 1. She also asserted that, as a pro se appellant, she was u nfamiliar with Board procedures, that three people close to her had died in late 2012, and that she had been going through a complicated divorce. Id. The agency responded to the appellant’s petition for review , and she replied to the agency’s response. PFR File, Tabs 5 -7. ANALYSIS ¶3 The Board will waive the time limit for filing a petition for review only upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114 (g). To establish good cause for the untimely filing of an appeal, a party must show that she exercised due diligence or ordinary prudence under the particular circumstances of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184 (1980). To consider whether a party has shown good cause, the Board will consider the length of the delay, the reasonableness of her excuse and her 3 showing of due d iligence, whether she is proceeding pro se, and whether she has presented evidence of the existence of circumstances beyond her control that affected her ability to comply with the time limits or of unavoidable casualty or misfortune which similarly shows a causal relationship to her inability to timely file her peti tion. Moorman v. Department of the Army , 68 M.S.P.R. 60 , 62-63 (1995), aff’d , 79 F.3d 1167 (Fed. Cir. 1996) (Table). ¶4 The appellant’s pro se status is one consideration to be taken into account in determining whether she has shown good cause. However, her inexperience with legal matters and her unfamiliarity with Board procedures do not warrant waiving the filing deadline. Basu v. Merit Systems Protection Board , 594 F. App’x 981 , 983 (Fed. Cir. 2014) (explaining that “an appellant’s confusion regarding Board procedures does not demonstrate good cause for waiving a filing deadline” );2 Lagreca v. U.S. Postal Service , 114 M.S.P.R. 162, ¶ 9 (2010). This is particularly so whe n the initial decision provided her with clear and unambiguous instructions as to how she c ould file a petition for review. Guenther v. U.S. Postal Service , 68 M.S.P.R. 667, 670 (1995) . Similarly, her attempt to obtain assistance from other agencies, rather than simply following the straightforward instructions she was provided, militates against a finding of due diligence. Agbenyeke v. Department of Justice , 111 M.S.P.R. 140, ¶ 8 (2009) ( stating that the appellant’s failure to contact the Board to attempt to remedy her confusion weighed against a finding of good cause); Johnson v. Department of the Air Force , 92 M.S.P.R. 370 , ¶ 10 (2002) (deci ding to pursue claims in another forum d id not sho w good cause). ¶5 In addition, t he Board has held that general personal difficulties do not constitute good cause. Crozier v. Department of Transportation , 93 M.S.P.R. 438, ¶ 9 (2003) . The appellant’s divorce and the unfortunate serie s of deaths 2 The Board may rely on a nonprecedential decision of the U.S. Court of Appeals for the Federal Circuit when, as here, it finds its reasoning persuasive. Encar nado v. Office of Personnel Management , 116 M.S.P.R. 301, ¶ 12 n.6 (20 11). 4 among her family and friends also do not c onstitute good cause. Crisp v. Department of Veterans Affairs , 73 M.S.P.R. 231, 234 (1997) ( concerning divorce and other difficulti es); Moles v. Office of Personnel Management , 43 M.S.P.R. 89, 90 (1989) ( concerning death in the family). Moreover, the appellant has not explained why the effects from these difficulties prevented her from filing her petition for review for nearly 4 years. Crisp , 73 M.S.P.R. at 235. We find, therefore, that the appellant has not shown good cause for the extensive delay in filing her petition for review. ¶6 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 remain s the final decision of the Board regarding the appellant’s removal . 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 c laims determines the time limit for seeking 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 M erit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 3 Since the issuance of the initial decision in this 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 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: 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 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 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 8 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D .C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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	ANDERSON_EVELYN_A_DA_0752_13_0106_I_1_FINAL_ORDER_1974723.pdf	2022-11-02	null	DA-0752	NP
3,961	https://www.mspb.gov/decisions/nonprecedential/CUNNINGHAM_BENJAMIN_NY_3443_17_0015_I_1_FINAL_ORDER_1974756.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD BENJAMIN CUNNINGHAM, Appellant, v. OFFICE OF SPECIAL CO UNSEL, Agency. DOCKET NUMBER NY-3443 -17-0015 -I-1 DATE: November 2, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Benjamin Cunningham , Bronx, New York, pro se. Amy Beckett , Esquire, and Kenneth Hendrickson , 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 . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or 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 appe al or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision.2 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 The appellant fi led an appeal alleging that he wa s a “Federal crime victim” and, among other things, tha t the Office of Special Counsel (OSC) had unlawfully dismissed his fraud, waste, abuse , and mismanagement complaint that he filed against the U.S. Department of Justice, U.S. Marshals Service (USMS), simply because he is “not a Federal employee.” Initial Appeal File (IAF), Tab 1 at 2-3. Because it appeared that the Board may not have jurisdiction over the appeal, the administrative judge issued two separate show cause orders that explained the jurisdictional issues in t his appeal and provided the appellan t with an opportunity to provide evidence a nd argument to establish that: (1) he is an employee under 5 U.S.C. § 7511 ; and (2) an adverse action as defined by 5 U.S.C. § 7512 had occurred. IAF, Tabs 3, 9. Without holding a hearing, t he administrative judge issued an initial decision finding that, although the appellant responded to her 2 The appellant also filed a motion for leave to file additional pleadings. P etition for Review File, Tab 7. He has failed to sufficiently describe the nature of, and the need for, the additional pleadings, as requi red by 5 C.F.R. § 1201.114 (a)(5). Furth er, the appellant has failed to explain how these additional pleadings would warrant a different outcome than that of the initial decision; that is, the Board lacks jurisdiction over his appeal. Accordingly, the appellant’s motion is denied. 3 jurisdictional orders by referring to newspapers and various court hearings , he did not dispute that he was not a current or prior F ederal employee or allege that he was an applicant for employment. IAF, Tab 12, Initial Decision (ID) at 4. The administrative judge also found that the appellant did not dispute that he was not appealing an adverse action as defined by 5 U.S.C. § 7512 . Id. Finally, concerning the appellant’s apparent claim that the Board has jurisdiction over his appeal b ecause he is a non -Federal employee whistleblower, the administrative judge found that the appellant is not an “employee” entitled to protection under the Whistleblower Protection Enhancement Act or the Whistleblower Protection Act. ID at 5 -6. Accordingl y, the administrative judge found that the appellant failed to make a nonfrivolous allegation that the Board has jurisdiction over his appeal. ID at 6. ¶3 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency ha s filed a response in opposition. PFR File, Tab 3. DISCUSSION OF ARGUME NTS ON REVIEW The appellant has failed to make a nonfrivolous allegation that the Board has jurisdiction over his appeal. ¶4 On review, the appellant has resubmitted documents he filed be low and asserts that the administrative judge’s decision is “ ILLEGAL ” and “UNCONSTITUTIONAL ” because it is “protecting the USMS Agency’s FRAUDULENT federal crime behavior which was unlawfully FUNDED by the United States Government’s Tax -Dollars.” PFR File , Tab 1 at 9 (emphasis and grammar as in the original) ; IAF, Tabs 1, 4-6, 10 -11. He also challenges OSC’s dismiss ing his complaint on the basis that he is not a Federal employee. PFR File, Tab 1 at 10. ¶5 Although the appellant appears to reassert the cla ims he raised below , i.e., that he was mistreated by the USMS and that OSC improperly dismissed his complaint against the agency , PFR File, Tab 1; IAF, Tabs 1, 4 -6, 10, 11 , he does not challenge the administrative judge’s jurisdictional findings nor provid e 4 evidence or argument showing that the Board has jurisdiction over this appeal. Therefore, b ecause the appellant has raised no arguments challenging the administrative judge’s jurisdictional findings, he has shown no error by the administrative judge in dismissing h is appeal for lack of Board jurisdiction. See 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 serious evidentiary challenge justifying a complete review of the record) ; Weaver v. Department of the Navy , 2 M.S.P.R. 129 , 133 (1980) (finding that, before the Board will undertake a complete review of the record, the petitioning party must explain why the challenged factual determination is incorrect and identify the specific evidence in the recor d that demonstrates the error) , review denied , 669 F.2d 613 (9th Cir. 1 982) (per curiam) . ¶6 Furthermore, i t is undisputed that the appellan t is not a cur rent or former Federal employee , and he did not allege that he was an applicant for a Federal position . Therefore, we di scern no reason to disturb the administrative judge’s well-reasoned findings that the Board lacks jurisdiction over this matter . See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 106 (1997) (finding no reason to disturb the administrative judge’s findings when she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions) ; see generally Willis v. Department of Agriculture , 141 F.3d 1139 , 1144 (Fed. Cir. 1998) (finding that the Whistleblower Protection Act “is intended to protect government employees who risk their ow n person al job security for the advancement of the pubic good by disclosing abuses by government personnel”) (emphasis added); Aviles v. Merit Systems Protection Board , 799 F.3d 457 (5th Cir. 2015) (upholding the Board’s decision that a former Internal Revenue Service employee’s report to his superiors that ExxonMobil Corporation has 5 allegedly committed tax fraud did not constitute a protected disc losure because it concerned an allegation against a private entity).3 NOTICE OF APPEAL RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summar y of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. 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. 3 The appellant filed three additional appeals , all of which were dismissed for lack of jurisdiction. Cunningham v. Office of Special Counsel , MSPB Docket No . NY -3443 - 18-0055-I-1, Initial Decision (Feb. 27, 2018 ); Cunningham v. Administrative Conference of the United States , MSPB Docket No. NY -3443 -18-0200 -I-1, Initial Decision (Sept. 24, 2018); Cunningham v. Office of Special Counsel , MSPB Docket No. NY-3443 -18-0201 -I-1, Initial Decision (Sept. 21, 2018). The appellant’s petitions for review of those three initial decisions will be resolved separately. 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 6 Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional informatio n about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono re presentation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC revie w of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so , you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 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 represe ntative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any require ment of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and 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 8 (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 disposition of alle gations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison 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. 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of a ppeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower rep risal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 9 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www .mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept repre sentation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscour ts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	CUNNINGHAM_BENJAMIN_NY_3443_17_0015_I_1_FINAL_ORDER_1974756.pdf	2022-11-02	null	NY-3443	NP
3,962	https://www.mspb.gov/decisions/nonprecedential/SAYRE_PHIL_DC_0752_16_0036_I_1_FINAL_ORDER_1974779.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD PHIL SAYRE, Appellant, v. ENVIRONMENTAL PROTEC TION AGENCY, Agency. DOCKET NUMBER DC-0752 -16-0036 -I-1 DATE: November 2, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Mark R. Heilbrun , Esquire, Fairfax Station, Virginia, for the appellant. David P. Guerrero , Esquire and Rebecca Wulffen , 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 involuntary retirement and constructive demotion claims for lack of jurisdiction. Generally, we grant petitions such as this one only when: 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 t he facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the cas e; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petiti on for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 It is undisputed that, effective August 11, 2013, the appel lant was reassigned, with no loss in grade or pay, from a GS -15, step 10 Biologist position with the agency’s Risk Assessment Division’s Immediate O ffice to another GS-15, step 10 Biologist position with the agency’s New Chemicals Screening and Assessment Branch. Initial Appeal File (IAF) , Tab 6 at 13. More than 16 months later, effective December 31, 2014, the appellant retired under the agency’s Voluntary Separation Incentive Program and received a separation incentive payment . Id. at 16. On October 1 2, 2015, he filed the instant appeal challenging his reassignment as a constructive demotion and his retirement as involuntary based on i ntolerable working conditions. IAF, Tab 1 at 4, 6. He also alleged that the agency discriminated against him on the basis of his age. Id. at 6. ¶3 The administrative judge issued an order informing the appellant that the Board lacks jurisdiction over voluntary re tirements and explained that to be entitled to a jurisdictional hearing he must make a nonfrivolous allegation that his 3 retirement was involuntarily obtained through coercion, duress, or misinformation provided by the agency. IAF, Tab 3 at 2. The order also set forth the criteria for establishing jurisdiction over a claim of constructive demotion. Id. at 3-4. ¶4 After considering the parties’ responses to the order, the administrative judge issued an initial decision finding that the appellant failed to present nonfrivolous allegations that his ret irement was involuntary or that he was constructively demoted. IAF, Tab 7, Initial Decision (ID) at 3 -8. Accordingly, the administrative judge dismissed the appeal for lack of jurisdiction without holding the requested hearing.2 ID at 1, 9. ¶5 The appellan t has filed a petition for review of the initial decision, the agency has responded in opposition, and the appellant has replied to the agency’s response. Petition fo r Review (PFR) File, Tabs 1, 3 -4. DISCUSSION OF ARGUME NTS ON REVIEW ¶6 An appellant is only entitled to a jurisdictional hearing if he makes a nonfrivolous allegation of Board jurisdiction. Jones v. Department of the Treasury , 107 M.S.P.R. 466 , ¶ 11 (2007). Nonfrivolous allegations of Board jurisdiction are allegations of fact that, if proven, could establish a prima facie case that the Board has jurisdiction over the matter in issue. Id.; see 5 C.F.R. § 1201.4 (s). ¶7 The appellant alleged that his supervisors oversaw a reorganization in which several older employees were reassigned and then subjected “to utterly intolerable work conditions ” and that his “ultimate decision to retire was proximately influenced by the initial illegitimate constructive demotion and intervening intolerable work conditions.” IAF, Tab 5 at 5 -6. Outside of his conclu sory statement that the reassigned older employees were requir ed to 2 Because the administrative judge dismissed the appeal for lack of jurisdiction, she did not decide whether the appellant demonstrated good cause for the apparent untimeliness of the appeal . ID at 8 n.2 . 4 perform duties and accept responsibilities not commensurate with their pay and grade, there is no indication as to why he believes that his working conditions were intolerable. Id. The appellant’s allegations regarding his involuntary retirement cl aim are conclusory because he does not describe what duties he was forced to perform that he believes were intolerable or what other actions the agency took that made his work environment intolerable. His pro forma allegations are insufficient to obtain B oard jurisdiction. See Clark v. U.S. Postal Service , 123 M.S.P.R. 466 , ¶¶ 6-8 (2016) , aff’d per curiam , 679 F. App’x 1006 (Fed. Cir. 2017) , and overruled on other grounds by Cronin v. U.S. Postal Service , 2022 MSPB 13 , ¶ 20 n. 11. . ¶8 We have considered the appellant’s allegations of discrimination and other violations of law only insofar as those allegations relate to the issue of the voluntariness of his retirement . Vitale v. Department of Veterans Affairs , 107 M.S.P.R. 501 , ¶ 20 (2007); see Baker v. U.S. Postal Service , 71 M.S.P.R. 680, 695 (1996). Again, we find his allegations of discrimination to be pro forma in nature. IAF, Tabs 1, 5; PFR File, Tab 1, 4 ; see Clark , 123 M.S.P.R. 466 , ¶¶ 6-8. Similarly, though he asserted that his supervisors violated the law by assigning him “less -than -grade -appropriate assignment[s],” PFR File, Tab 1 at 5, such an allegation is conclusory and, even if true, we find would be insufficient to establish that his retirement was involuntary , see Brown v. U.S. Postal Service , 115 M.S.P.R. 609 , ¶¶ 13-15 (explaining that unpleasant working conditions or dissatisfaction with work assignments generally will not be so intolerable as to compel a reason able person to resign ), aff’d , 469 F. App’x 852 (Fed. Cir. 2011) . Moreover, though he served in his r eassignment for over 16 months, he did not allege that he attempted to exhaust his remedial avenues . See id., ¶ 15. Nor did he allege that he was under any sort of time pressure to resign when he did. See Holser v. Department of the Army , 77 M.S.P.R. 92 , 95-96 (1997). Because he could have remained in his position and contested the validity of the agency’s actions but chose not to, we find that he has failed to nonfrivolously allege that 5 his resignation was involuntary. See Brown , 115 M.S.P.R. 609 , ¶ 15; cf. Heining v. General Services Administration , 68 M.S. P.R. 513 , 523 (1995) (finding an involuntary resignation after the appellant offered overwhelming evidence supporting an intolerable working environment and did not resign until she pursued many grievances and two complaints, receiving an adverse decision on her grievances just prior to her resignation). ¶9 Regarding his constructive demotion claim, the appellant does not allege that the f ormer position from which he was reassigned was upgraded following his reassignment, but instead argues that the position was misclassified and was worth a higher grade. IAF, Tab 5 at 5 , 9. Because the Board lacks jurisdiction over appeals concerning a p osition’s proper classification3 and may exercise jurisdiction in a constructive demotion appeal only when a n appellant’s former position actually has been reclassified upward, the appellant has failed to raise a nonfrivolous allegation of Board jurisdicti on under a constructive demotion theory . See Marcheggiani v. Department of Defense , 90 M.S.P.R. 212 , ¶ 8 (2001). ¶10 On review, the appellant alleges that the administrative judge appeared biased because, essentially, she decided in favor of the agency. PFR File, Tab 1 at 10-11. In making a claim of bias or prejudice against an administrative judge , a party must overcome the presumpt ion of honesty and integrity that accompanies administrative adjudicators. Oliver v. Department of Transportation , 1 M.S.P.R. 382, 386 (1980) . Furthermore, an administrative judge’s conduct during the course of a Board proceeding warrants a new adjudication only if his or her comments or actions evince “a deep -seated favoritism or antagonism that would make fair judgment impossible.” Bieber v . Department of the Army , 287 F.3d 1358 , 1362 -63 (Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540 , 3 Federal employees may request a decision from the Office of Personnel Management as to the appropriate occupational series or grade of their official position. 5 C.F.R. § 511.603 (a)(1). 6 555 (1994)) . Here, the appellant has not identified any evidence of prejudice, favoritism , or antagonism in the proceedings below. Accordingly, we find no merit to the appel lant’s allegations of bias. ¶11 The ap pellant also referenced an erroneous statement in the initial decision that he was reassigned to a GS -14 position rather than a GS -15 position. PFR File, Tab 1 at 4 n.2, 10; ID at 2. This typographical error does not aff ect the legal analysis in the initial decision, and we find it is of no legal consequence. See Goetz v. Office of Personnel Management , 56 M.S.P.R. 298 , 300 n.2 (1993). Similarly, despite the appellant’s contentions to the contrary, PFR File, Tab 1 at 7, the administrative judge’s election not to cite each of his unsupported and irrelevant allegations in the initial decision does not show that she failed to consider them or otherwise erred. See Kirkpatrick v. U.S. Postal Service , 74 M.S.P.R. 583 , 589 (1997) . ¶12 After full consideration of the a ppellant’s arguments on review , we deny his petition for review and affirm the initial decision dismissing his appeal for lack of jurisdiction. NOTICE OF APPEAL RIG HTS4 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 Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and 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 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 7 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). If you submit a petition for review to 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. 8 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an 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 discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opport unity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must fil e with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 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 Commiss ion 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures unde r 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial p etition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may fil e a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this de cision. 5 U.S.C. § 7703 (b)(1)(B). 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, 2 018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 10 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D .C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SAYRE_PHIL_DC_0752_16_0036_I_1_FINAL_ORDER_1974779.pdf	2022-11-02	null	DC-0752	NP
3,963	https://www.mspb.gov/decisions/nonprecedential/BEVERIDGE_MICHAEL_J_SF_0752_17_0220_I_1_FINAL_ORDER_1974792.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MICHAEL J. BEVERIDGE , Appellant, v. DEPARTMENT OF THE NA VY, Agency. DOCKET NUMBER SF-0752 -17-0220 -I-1 DATE: November 2, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Doc A. Anderson, III , Esq uire, San Diego, California, for the appellant. Harold G. Murray , San Diego, California, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his constructive removal appeal for lack of jurisdiction . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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 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, d espite 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 conside ring the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’ s final decis ion. 5 C.F.R. § 1201.113 (b). ¶2 In his petition for review, the appellant makes the following arguments: the administrative judge did not provide adequate jurisdictional notice regarding his involuntary retirement and whistleblower reprisal claims, or an opportunity to develop the record; the administrative judge violated his constitutional due process righ ts by failing to consider his “affirmative defenses” of a deprivation of his civil rights pursuant to 42 U.S.C. § 1983 , violations of 42 U.S.C. §§ 1981 -1982, retaliation pursuant to the Whistleblower Protection Act, and tort violations; the Board has jurisdiction over his claims of wrongful disciplinary and corrective actions, wro ngful pay and benefits changes, significant changes in worki ng conditions, a suspension without pay, a decrease in pay , and retaliation based on a protected activity; and he is entitled to a hearing. Petition for Review (PFR) File, Tab 1 at 8-16. ¶3 After considering the appellant’s arguments on review and reviewin g the record, we find no reason to disturb the initial decision. Specifically, w e find that the administrative judge provided proper jurisdictional notice for a constructive removal appeal . Initial Appeal File (IAF), Tab 2 at 2 -3. In addition , because t he appellant did not file a motion to compel below, he is precluded from raising 3 discovery issues for the first time on review. Although the administrative judge did not specifically address all of the appellant’s alleged “affirmative defenses,” we find that his factual allegations supporting such claims do not constitute a nonfrivolous allegation of jurisdiction over the constructive removal appeal. IAF, Tab 1 at 15 -28. We further find that the appellant has failed to make a nonfrivolous allegation of an otherwise appealable action within the Board’s jurisdiction , and thus, he is not entitled to a hearing . Moreover, the appellant has not alleged or provided evidence that he filed a co mplaint with the Office of Special Counsel concerning his separation or alleged involuntary retirement , and he does not claim to be filing an individual right of action appeal . ¶4 With his petition for review, t he appellant has submitted a new declaration and part of his initial appeal pleading . PFR File, Tab 1 at 18-35. The appellant has failed to show that the information contained in his new declaration was unavailable despite his due di ligence when the record closed . Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 213 -14 (1980) (finding that, u nder 5 C.F.R. § 1201.115 , the Board generally will not consider evidence submitted for the first time with a petition for review absent a showing that it was unavailable before the record was closed before the administrative judge desp ite the party’s due diligence) . In any event, even considering th e cumulative effect of the appellant’s factual assertions in his new declaration with those already in the record, we find that he has failed to raise a nonfrivol ous allegation of jurisdiction over this appeal . Further , because the appellant’s initial app eal pleading is already a part of the record , it does not constitute new evidence or legal argument on which grounds a petition for review may be granted. IAF, Tab 1 at 15-29; Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256 (1980) (stating that evidence that is already in the record is not new). 4 NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described bel ow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to yo ur particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is mos t appropriate in any matter. 5 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “G uide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit , you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor war rants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to t he Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. distri ct court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition , you may be entitled to representation by a court -appointed lawyer and 6 to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http:/ /www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). I f you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review t o the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a me thod requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancemen t Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 7 disposition of allegations of a prohibited personnel practice described in secti on 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jur isdiction.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 b y the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 8 Contact information for the 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	BEVERIDGE_MICHAEL_J_SF_0752_17_0220_I_1_FINAL_ORDER_1974792.pdf	2022-11-02	null	SF-0752	NP
3,964	https://www.mspb.gov/decisions/nonprecedential/BRIDGES_STEPHANIE_A_SF_0845_17_0087_I_1_FINAL_ORDER_1974821.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD STEPHANIE A. BRIDGES , Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER SF-0845 -17-0087 -I-1 DATE: November 2, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Stephanie A. Bridges , Anchorage, Alaska, 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 appell ant has filed a petition for review of the initial decision, which affirmed the reconsideration decision of the Office of Personnel Management (OPM) to collect $49,696.59 based on the overpayment of Federal Employees’ Retirement System annuity benefits to her deceased spouse. 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 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 review , the appellant, who stipulated below to the existence and the amount remaining on the overpayment, now seeks to challenge the amount of the overpayment. She also challenges the administrative judge’s finding that she did not seek an adjustment to the recovery schedule. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erron eous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis un der 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.3 5 C.F.R. § 1201.113 (b). 2 However, our decision in this matter does not preclude the appellant from exercising any right that she may have to make a mid -collection request to OPM to modify the repayment schedule or for compromise, suspension, or write -off, as provided for under any applicable law, rule, regulation, or OPM guideline. See 5 C.F.R. § 845.301 (stating that, when it has been determined tha t the recipient of an overpayment is ineligible for waiver, the individual nevertheless is entitled to an adjustment in the recovery schedule if he shows that it would cause him financial hardship to make payment at the rate scheduled); see also Hundley v. Office of Personnel Management , 83 M.S.P.R. 632 , ¶ 16 (1999) (finding that a change in an appellant’s financial situation may be t he basis for an application to OPM for a new determination regarding an adjustment in the repayment schedule); Martin v. Office of Personnel Management , 49 M.S.P.R. 134 , 137 (1991) (finding that any effects of a future medical emergency could be addressed by a mid-collection request to OPM for lower payments, compromise, suspension, or write -off), aff’d , 960 F.2d 156 (Fed. Cir. 1992) (Tabl e). 3 The appellant is notified that OPM has advised the Board that it may seek recovery from an annuitant’s estate or other responsible part y of any debt remaining upon his or her death. A party responsible for any debt remaining upon an annuitant’s deat h may 3 NOTICE OF APPEAL RIG HTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide l egal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read care fully 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). include an heir (spouse, child or other) who derives a benefit from the annuitant’s Federal benefits, an heir or other person acting as the representative of his or her estate if, for example, the representative fails to pay the United States before paying the claims of other creditors in accordance with 31 U.S.C. § 3713 (b), or transferees or distribute[r]s of the annuitant’s estate. Pierotti v. Office of Personnel Management , 124 M.S.P.R. 103 , ¶ 13 (2016). 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 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit you r petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Prote ction Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decisi on. If the action involves a claim of 5 discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC v ia commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Wh istleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 6 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Wash ington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/pro bono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 5 The original statutory provision that provided for judicial review of certain whistleblower claims b y any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain w histleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 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	BRIDGES_STEPHANIE_A_SF_0845_17_0087_I_1_FINAL_ORDER_1974821.pdf	2022-11-02	null	SF-0845	NP
3,965	https://www.mspb.gov/decisions/nonprecedential/BIRNEY_SHERRY_L_DE_0831_17_0207_I_1_FINAL_ORDER_1974827.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SHERRY L. BIRNEY, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER DE-0831 -17-0207 -I-1 DATE: November 2, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Sherry L. Birney , Wheat Ridge, Colorado, pro se. Carla Robinson , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed the decision of the Office of Personnel Management (OPM) denying her survivor benefits as a former spouse. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential 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 findings of ma terial 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 de cision 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 conclud e 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 In her petition for review, the appellant asserts that she believes her former spouse survivor annuity benefits under the Civil Service Retirement System can be reinstated pursuant to 50 U.S.C. § 2154 (d)(4) because she and her second husband were subsequently divorced. Petition for Review File, Tab 1 at 3; Initial Appeal File (IAF), Tab 8 at 21-22. 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); 5 C.F.R. § 1201.115 (d). The appellant has not made such a showing here. But more significantly, even if the argument w ere considered, this restoration statute does not apply to the circumstances here. The statute relied upon by the appellant applies to an employee or a qualified former spouse of an employee of the Central I ntelligence Agency (CIA). 50 U.S.C. § 215 4(a); 50 U.S.C. § 2001 (1). The appellant’s former spouse was employed by the Department of the Air Force and at no point during his Federal service was he employed by the CIA. IAF, Tab 8 at 29. As applicable here, per OPM’s regulations, a former spouse annuity that is terminated because of remarriage before age 55 will not be 3 reinstated upon ter mination of the remarriage by divorce. 5 C.F.R. § 831.644 (d)(1). Thus, we find that the appellant has not shown that the administrative judge made an error interpreting a law or regulat ion. We therefore 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 summar y of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice o f review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 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 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 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 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 thr ough the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receiv e this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Wash ington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5S W12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 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 cha llenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “G uide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit , you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any co urt of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistlebl ower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Board neither endorses the services provided by any attorney nor war rants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	BIRNEY_SHERRY_L_DE_0831_17_0207_I_1_FINAL_ORDER_1974827.pdf	2022-11-02	null	DE-0831	NP
3,966	https://www.mspb.gov/decisions/nonprecedential/LU_CHIH_WEI_(SCOTT)_CH_1221_14_0827_W_1_FINAL_ORDER_REDACTED_2026150.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CHIH -WEI (SCOTT) LU, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER CH-1221 -14-0827 -W-1 DATE: November 2, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Chih -Wei (Scott) Lu , Keller, Texas , pro se. Jeffrey J. Velasco , Esquire, San Francisco, California , for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which denied corrective action in his 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; the initial decision is 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affec ted the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. The refore, we DENY the petition for review. Except as expressly MODIFIED to vacate the administrative judge’s analysis of whether the agency proved by clear and convincing evidence that it would have removed the appellant from his position absent his protect ed disclosure , we AFFIRM the initial decision. BACKGROUND ¶2 The appellant was employed by the agency as a Supervisory Transportation Security Officer (STSO) at O’Hare International Airport in Chicago, Illinois. Initial Appeal File (IAF), Tab 8, Subtab 4z. As an STSO, the appellant was responsible for mitigating t hreats against civil aviation and other transportation modes. Id., Subtab 4x. He further performed, and supervised other transportation security officers (TSO) in the performance of, all security -related function s concerning the screening of people, property, and cargo, through the use and application of procedures, techniques, and technology. Id. ¶3 On January 24, 2014, the agency proposed the appellant’s removal based on two charges: fail ure to follow the agency’s standard operating procedures and failure to follow directions . IAF, Tab 8, Subtab 4m at 1 -2. The charges stemmed from a passenger complaint regarding damage to her luggage, id., which resulted in a customer service manager inv estigating the matter and learning that the appellant processed the bag improperly. IAF, Tab 49 at 99 -101. This led to 3 further investigation into the appellant’s performance of his duties, wherein the agency discovered that he had improperly processed se veral other bags. Id. at 105-06. During o ne of the meetings dedicated to the appellant’s oral response, he complained to the deciding official that his removal was a more sever e penalty than other employees had faced and advised him of an alleged breach in the baggage inspection area around the 2013 Thanksgiving holiday . IAF, Tab 11 at 12-13. After the meeting, the deciding official wrote an email to his deputies, informing them of the meeting and what was discussed regarding the alleged Thanksgiving breach. Id. at 13 . On March 21, 2014, the deciding official issued a final decision, sustaining both charges and removing the appellant from Federal service . IAF, Tab 8, Subtab 4h. ¶4 A few weeks later, the a ppellant filed a complaint with the Office of Special Counsel (OSC) alleging that the agency removed him in retaliation for his disclosure to the deciding official concerning the alleged 2013 Thanksgiving holiday security breach . IAF, Tab 1 at 26 -28. On July 11, 2014, OSC closed its file and provided the appellant with the right to file a Board appeal. Id. ¶5 The appellant timely filed the instant IRA appeal, id. at 1, and the parties were advised on their respective burdens of proof , IAF, Tab 20 at 3-4. The administrative judge held a hearing, but retired before issuing an initial decision. IAF, Tab s 48-49, 58, 67, Initial Decision ( ID) at 2 n.1. The case was reassigned to a new ad ministrative judge, who informed the parties of the retirement and advised them that he could either issue an initial decision after reviewing the record and the transcript of the hearing or permit the parties to elect to recall some or all of the witnesses. IAF, Tab 58 . Neither party objected to the new administrative jud ge issuing the initial decision after reviewing the record and testimonial evidence . Id. ¶6 Subsequently , the administrative judge issued the initial decision, finding that the appellant exhausted his administrative remedy with OSC and made nonfrivolous al legations of Board jurisdiction . ID at 1 -2, 7 n. 6. However, he 4 found that the appellant failed to prove by preponderant evidence that he made a protected disclosure pursuant to 5 U.S.C. § 2302 (b)(8)(A). ID at 8 -16. Nonetheless, the administrative judge determined that , if the appellant had made a protected disclosure, he would have made a prima facie case of whistleblower retaliation because he proved by preponderant evidence that his disclosur e was a contributing factor to his removal. ID at 16 -17. The administrative judge continued on with this alternative analysis and found that the agency met its burden to show by clear and convincing evidence that it would have removed the appellant from his position absent the disclosure, and therefore, denied corrective action . ID at 18 -32. ¶7 The appellant has filed a petition for review , mostly arguing the merits of his removal. Petition for Review (PFR) File, Tab 1 at 7-16. He also argues that the administrative judge should have considered the agency’s reliance on a prior suspension in assessing the penalty of removal , id. at 3 -7, and that the administrative judge erred in finding that he failed to prove by preponderant evidence that he made a protected disclosure , id. at 18 -20. The agency has filed a response to the petition, to which the appellant has replied . PFR File, Tabs 3, 6. DISCUSSION OF ARGUME NTS ON REVIEW2 ¶8 When , as here, an appellant establishes the Board’s ju risdiction in an IRA appeal, he then must establish a prima facie case of whistleblower retaliation by proving by preponderant evidence that he made a protected disclosure or engaged in protective activity that was a contributing factor in a personnel acti on taken against him. 5 U.S.C. § 1221 (e)(1); Lu v. Department of Homeland Security , 122 M.S.P.R. 335 , ¶ 7 (2015). A preponderance of the evidence is that degree of relevant evidence that a reasonable person, con sidering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true 2 We have reviewed the relevant legislation enacted since the filing of this appeal and find that it does not impact the outcome. 5 than untrue. 5 C.F.R. § 1201.4 (q). If the appellant makes this prima fa cie showing, the burden shifts to the agency to prove by clear and convincing evidence that it would have taken the same personnel action in the absence of the protected disclosure. Lu, 122 M.S.P.R. 335 , ¶ 7. The appellant failed to prove by preponderant evidence that he made a protected disclosure. ¶9 A protected disclosure is a disclosure that an appellant reasonably believes 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 public health or safety. 5 U.S.C. § 2302(b)(8)(A); Chavez v. Department of Veterans Affairs , 120 M.S.P.R. 285 , ¶ 18 (2013). A reasonable belief exists if a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the appellant could reasonably co nclude that the actions of the Government evidence one of the categories of wrongdoing listed in section 2302(b)(8)(A) . Id. Further, th e disclosure must be specific and detailed, and not a vague and conclusory allegation of wrongdoing. Linder v. Department of Justice , 122 M.S.P.R. 14 , ¶ 14 (2014). ¶10 The appellant argues that his discussion with the deciding official regarding the alleged Thanksgiving 2013 security breach constituted a protected disclosure under section 2302(b)(8 )(A). PFR File, Tab 1 at 18 -20. Specifically, t he appellant testified at the hearing that he informed the deciding official that two other officers approached and informed him that they witnessed another employee commit a securi ty breach during Thanksgiving 2013 . IAF, Tab 49 at 61 -64. The deciding official testified regarding the meeting as wel l. He testified that the appellant did not specifically name the employee who allegedly committed th e security breach, but that he made reference to a female Caucasian . IAF, Tab 48 at 254. He further testified that the appellant provided him with no spe cificity regarding the purported incident , including the name of the alleged offender, any 6 information regarding the anonymous employees who supposedly witnesse d the incident , or what was allegedly done. Id. at 255 -57. ¶11 Because vagueness is a relevant factor in determining whether the appellant made a protected disclosure , Linder , 122 M.S.P.R. 14 , ¶ 14, the admini strative judge correctly found that resolving whether the appellant’s discussion with the deciding official constituted a protected disclosure depended on determining the appellant’s and the deciding official’s credibility regarding the meeting . ID at 11-12; see Vi cente v. Department of the Army , 87 M.S.P.R. 80, ¶ 7 (20 00) (stating that, whe n it is impossible to believe conflicting testimony of witnesses on opposing sides, resolving the appeal depends on assessing witness credibility) . Normally, when a hearing is held, we defer to an administrative judge’s credibility rulings when they are im plicitly or explicitly based on observing a witness’s demeanor. Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002). However, in this case, the administrative judge who held the hearing was not the same administrative judge who issued the initial decision. IAF, Tabs 58, 67 ; ID at 12 & n.9 . In circumstances when credibility determinations were made based on the written record a nd not on witness demeanor, the Board will give those findings only the weight warranted by the record and the strength of the conclusions. Donato v. Department of Defense , 34 M.S.P.R. 385 , 389 (1987). ¶12 Here, the administrative judge’s credibility findings were appropriately based on the factors set forth in Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987 ). ID at 12 -15. He considered the parties’ opportunity to observe the conversation, the witnesses ’ character, any prior inconsistent statements, biases, and the inherent probability of their version of events . Id. He found that both parties were present for the conversation and that the record contained no information impugning the reputation of either witness. ID at 12 . Further , he found that the appellant’s testimony was inconsistent with other statements made to the Board and Illinois senators, ID at 12 -13, but that the deciding official’s 7 testimony was consistent with his prior declaration and corroborated by other witness testimony , ID at 13. The administrative judge further stated that the appellant was bias ed in his testimony, given his feelings of an unjust removal, and that he knew that it was in his best interest to testify that he advised the decidi ng official with sufficient specificity . Id. On the other hand, the administrative judge found that the deciding official had little personal interest in the outcome of the proceedings and was not biased in his testimony. Id. Ultimately, the administra tive judge found it more likely that the appellant provi ded limited specifics regarding what had occurred. ID at 14. He further found the deciding official’s testimony to be straightforward and consistent with other record evidence, including testimony of other witnesses, and he, therefore, credited his testimony. ID at 14 -15. ¶13 We find the administrative judge’s credibility determinations on the question of whether the appellant provided sufficient detail to constitute a protected d isclosure to be supported by the record. We find that there are no other, more persuasive, indicia of credibility in the record than those relied upon by the administrative judge that would form a basis to disturb his findings , and the appellant has not p resented any specific evidence in the record that demonstrates error in those findings. Accordingly, we agree with the administrative judge’s conclusion that the appellant’s disclosure was too vague to be protected under 5 U.S.C. § 2302 (b)(8)(A). ¶14 Even if the appellant had been more specific in his discussion with the deciding official, the administrative judge correctly noted that the appellant failed to investigate the veracity of the claims made by the two TSOs and provided no information regarding their reliability or trustworthiness. ID at 15. Further, the record contains no information regarding one of the TSOs , id., and the appellant admitted that he did not know or work with the other TSO, IAF, Tab 49 at 23 -24. Under these circumstances, we find that the appellant failed to prove that he had a reasonable belief that the information disclosed to him by the TSOs was such that 8 a reasonable person in his position would believe evidenced any wro ngdoing. See Chavez , 120 M.S.P.R. 285 , ¶ 18. ¶15 Based on the foregoing, we agree with the administrative judge’s conclusion that the ap pellant failed to make a protected disclosure. Notwithstanding that finding, h owever, the administrative judge also determined that the appellant’s disclosure was a contributing factor to his removal , ID at 16-17, and that the agency met its burden to show by clear and convincing evidence that it would have removed the appellant from his position even absent the disclosure, ID at 18 -32. The Board has held that an analysis of an IRA appeal may not proceed to the clear a nd convincing evidence test unless the appellant has first established a prima facie case of whistleblower retaliation. Scoggins v. Department of the Army , 123, M.S.P.R. 592 , ¶ 28 (2016). Because the appellant failed to establish a prima facie case of whistleblower retaliation , it was inappropriate for the administrative judge to determine whether the agency proved by clear and convincing evidence that it would have taken the same action absent the disclosure. Accordingly, we vacate the administrative judge’s findings in that regard. The administrative judge did not err in not considering the appellant’s prior suspension. ¶16 After the initial appeal was filed, the parties were advised of their respective burden s, including the “clearly erroneous” standard for reviewing prior disciplinary actions and their role in determining an appropriate penalty as set forth by the Board in Bolling v. Department of the Air Force , 9 M.S.P.R. 335 , 339-40 (1981). IAF, Tab 20 at 4. Several months later, the previous administrative judge found that the Bolling standard was not applicable in the context of an IRA appeal given the different burden -shifting paradigm s. IAF, Tab 34 at 3 -4, Tab 39 at 2 -4. The agency requested reconsideration of the decision , and the admin istrative judge certified the issue for interlocutory appeal. IAF, Tab 39. 9 ¶17 In an Opinion and Order issued in April 2015 , the Board agreed with the administrative judge that the standard set forth in Bolling is inapplicable in the IRA context. See Lu , 122 M.S.P.R. 335 , ¶ 8. The Board agreed with the administrative judge’s analysis that , in Cosgrove v. Department of the Navy , 59 M.S.P.R. 618 , 624 -25 (1993), the Board stated that —in determining whether an agency has met its burden in an IRA appeal of establi shing by clear and convincing evidence that it would ha ve taken the same action absent the protected disclosure —an administrative judge may closely scrutinize the appellant’s past disciplinary record for evidence of possible retaliatory motive. Lu, 122 M.S.P.R. 335, ¶ 5. Nonetheless, the Board held that, even though the Bolling standard is inapplicable in IRA appeals, it does not mean that the Board must consider a full review of the merits of the suspension . Id., ¶ 8. Rather, the Board instructed the administrative judge to give the parties an opportunity to address whether, and to what extent, evidence regarding the appellant’s 2012 suspension relates to the Board’s analysis of his claim of whistleblower reprisal . Id., ¶ 12. The Board also instructed the administrative judge to exercise his discretion to determine whether the evidence in question is relevant, materi al, and nonrepetitious. Id. ¶18 After allowing the parties to brief that issue, the administrative judge found that the appellant failed to make a showing that evidence regarding his 2012 suspension was relevant to his whistleblower retaliation claim. IAF, Tab 45 at 2-4. On review, the appellant argues that the administrative judge erred when he denied the appellant’s request to include evidence of the suspension at the hearing. PFR File, Tab 1 at 3. Because the question of whether the 2012 suspension is relevant relates to the agency’s burden of proving that it would have removed the appellant absent any protected disclosure , see Cosgrove , 59 M.S.P.R. 10 at 625, we need not address the appellant’s arguments on review because the question of whether the agen cy me t its burden is not at issue ,3 see supra ¶ 15.4 ¶19 We have considered the appellant’s other arguments on review, but we conclude that a different outcome is not warranted. Accordingly, we affirm the initial decision except as expressly modified to vacate the administrative judge’s findings that the agency proved by clear and convincing evidence that it would have removed the appellant from his position absent his protected disclosure. NOTICE OF APPEAL RIG HTS5 The in itial 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 3 On October 27, 2022, the Board received the appellant’s motion for leave to submit new evidence. PFR File, Tab 10. In the motion, he asserts that the new evidence is a settlement agreement regarding the 14-day suspension. Id. at 1. Because any relevance of the suspension goes to the agency’s burden, as explained above, and the appellant has failed to first establish a prima facie case of whistleblower reprisal, we deny the appellant’s motion. 4 Similarly, i n his petition for review, the appellant argues, at length, the merits of his removal. PFR File, Tab 1 at 7 -17. We will not consider these arguments on review because they go to the question of whether the agency met its burden of proving by clear and co nvincing evidence that it would have removed the appellant from his position absent his disclosure. See supra ¶ 15. 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decis ions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 11 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 p articular case. If 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 revi ew of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petition ers and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our webs ite at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 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 a ction was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/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: 13 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be ad dressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) ot her than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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 jurisdictio n expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 14 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Co urt of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Me rit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	LU_CHIH_WEI_(SCOTT)_CH_1221_14_0827_W_1_FINAL_ORDER_REDACTED_2026150.pdf	2022-11-02	null	CH-1221	NP
3,967	https://www.mspb.gov/decisions/nonprecedential/GALOPE_MANUEL_G_SF_0831_22_0070_I_1_FINAL_ORDER_1974112.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MANUEL G. GALOPE, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER SF-0831 -22-0070 -I-1 DATE: November 1, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Manuel G. Galope , Zambales, Philippines, pro se. Shaquita Stockes , 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 an Office of Personnel Management (OPM) decision denying his application for deferred retirement under the Civil Service Retirement System (CSRS) . On petition for review , the appellant argues that the Board has 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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 jurisdiction over his appeal because OPM refused to issue a reconsideration decision despite his 201 3 request for reconsideration .2 Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous a pplication of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affec ted the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. The refore, we DENY the petition for review and AFFIRM the initial decision, which is now the Boar d’s final decision. 5 C.F.R. § 1201.113 (b). NOTICE OF APPEAL RIG HTS3 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 2 OPM never issued the appellant a reconsideration decision, but the administrative judge found in the initial decision that the Board had jurisdiction over the appellant’s appeal. After finding that the Board had jurisdiction over the appeal, t he administrative judge affirmed OPM’s decision on the grounds that the appellant failed to establish that he met the requirements for a deferred annuity under CSRS. We have reviewed that finding and disce rn no reason to disturb it. 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 appropria te in any matter. 3 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 to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 4 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar da ys after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claim s only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, 5 and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D. C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’ s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the Presi dent 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 ju risdiction. 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 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 Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510.	GALOPE_MANUEL_G_SF_0831_22_0070_I_1_FINAL_ORDER_1974112.pdf	2022-11-01	null	SF-0831	NP
3,968	https://www.mspb.gov/decisions/nonprecedential/HOFFMAN_WILLIAM_H_CH_0831_22_0215_I_1_FINAL_ORDER_1974128.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD WILLIAM H. HOFFMAN, JR., Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER CH-0831 -22-0215 -I-1 DATE: November 1, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Richard J. Keyes , Esquire, Saint Louis, Missouri, for the appellant. Karla W. Yeakle , 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 has filed a petition for review of the initial decision, which dismissed his appeal for failure to prosecute. On petition for review, the appellant argues , amongst other things, that he does not own a computer and could not afford to take ti me off work or pay an atto rney for “such a small claim.” 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 Petition for Review File, Tab 1 at 4. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the 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 The Board’s regulations provide that an admini strative judge may impose sanctions upon the parties as necessary to serve t he ends of justice. 5 C.F.R. § 1201.43 . Absent a showing of abuse of discretion , the Board will not reverse a n administrative judge’s imposition of sanctions. Morris v. Department of the Navy , 123 M.S.P.R. 662 , ¶ 12 (2016). In a case wher e a party fails to prosecute or defend an appeal, the administrative judge may dismiss the appeal with prejudice. 5 C.F.R. § 1201.43 (b). Dismissal is a severe sanction and should not be imposed for a single instance of failure to comply with a Board order. Davis v. Department of Commerce , 120 M.S.P.R. 34 , ¶ 17 ( 2013) (citing Williamson v. Merit Systems Protection Board , 334 F.3d 1058 , 1063 (Fed. Cir. 2003)). However, in a case such as this one, where a n appellant’s repeated failure to comply with Board orders reflects a lack of due diligence, and the appellant has been warned of the consequences of such conduct, the sanction of dismissal for failure to prosecute is appropriate. Turner v. U.S. Postal Se rvice , 123 M.S.P.R. 640, ¶ 16 (2016) (finding dismissal with prejudice was appropriate where the 3 appellant failed to appear for scheduled status conferences, failed to respond to the administrative judge’s orders , and, with the exception of registering as an e-filer, took no further steps to pursue his appeal until his petition for review), aff’d , 68 F. App’x 934 (Fed. Cir. 2017). ¶3 The appellant’s assertions on review do not persuade us that the administrative judge abused her discretion in dismissing this appeal. It is undisputed that the appellant failed to follow two Board orders and failed to appear for the prehearing conference , despite being warned that it could result in the imposition of sanctions, such as the dismissal of his appeal for failure to prosecute. Initial Appeal File (IAF) , Tabs 16-17. Further, the appellant, represented by counsel below, IAF, Tab 1 at 5, has no t offered any evidence or explanation for his failure to contact the Board prior to the prehearing conference or to comply with the administrative judge’s orders. Thus, the record shows that the appellant did not exercise due diligence in prosecuting his appeal. Therefore, we find that the administrative judge properly exercised her discretion to impose the sanction of dismissal with prejudice. See Williams v. U.S. Postal Service , 116 M.S.P.R. 377 , ¶¶ 7 -9 (2011); Coleman v. Department of Transportation , 16 M.S.P.R. 155 (1983) (finding dismissal for failure to prosecute appropriate notwithstanding the appellant’s contention that his confusion, coupled with his work and financial difficulties, caused his failure to appea r at the hearing, since he offered no explanation for his failure to contact t he Board prior to the hearing); 5 C.F.R. § 1201.43 (b). ¶4 Accordingly, we affirm the initial decision. 4 NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summ ary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which case s fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is mos t appropriate in any matter. 5 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional informatio n about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono re presentation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC revie w of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so , you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and 6 to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their resp ective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employm ent Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operation s within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Op portunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment 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 7 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in se ction 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Feder al Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circ uit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interes ted in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appell ants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law b y the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 8 Contact information for the courts of appeals can be found at their respective w ebsites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	HOFFMAN_WILLIAM_H_CH_0831_22_0215_I_1_FINAL_ORDER_1974128.pdf	2022-11-01	null	CH-0831	NP
3,969	https://www.mspb.gov/decisions/nonprecedential/STOGLIN_COREY_DEMOND_CH_4324_19_0114_I_1_FINAL_ORDER_1974169.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD COREY DEMOND STOGLIN , Appellant, v. DEPARTMENT OF LABOR, Agency. DOCKET NUMBER CH-4324 -19-0114 -I-1 DATE: November 1, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Corey Demond Stoglin , Minneapolis, Minnesota, pro se. Edward V. Hartman , Esquire, Chicago, Illinois, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed for lack of jurisdiction his appeal in which he alleged that the agency violated his rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 . O n 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 orde rs, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Boar d as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 administrative j udge erred in finding that he did not establish Board jurisdiction over his claims. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decisio n 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 cl osed. 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 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 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 3 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional 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. 4 (2) Judicial or EEOC revie w of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so , you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, exclud ing all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your represent ative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 5 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appe als 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 Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitione rs and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our websi te at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney w ill accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	STOGLIN_COREY_DEMOND_CH_4324_19_0114_I_1_FINAL_ORDER_1974169.pdf	2022-11-01	null	CH-4324	NP
3,970	https://www.mspb.gov/decisions/nonprecedential/SAVAGE_TOMMIE_G_AT_0752_11_0634_B_1_REMAND_ORDER_1973687.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD TOMMIE G. SAVAGE, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER S AT-0752 -11-0634 -B-1 AT-1221 -12-0591 -B-1 DATE: October 31, 2022 THIS ORDER IS NONPRECEDENTIAL1 Michael D. Kohn , Esquire, Ashley Binetti , Brandon S. Walker and Felipe Bohnet -Gomez , Washi ngton, D.C., for the appellant. Elizabeth Vavrica , Jacksonville, Florida, for the agency. Ryan Andrew Black , Huntsville, Alabama, 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 remand initial decision, in which the administrative judge sus tained the appellant’s removal, dismissed 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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 her constructive suspension claim, and denied her request for corrective action under 5 U.S.C. § 1221 . For the reasons discussed below, we GRANT the appel lant’s petition. We REVERSE the portion of the initial decision that dismissed the appellant’s constructive suspension cla im, find that the appellant suffered a constructive suspension within the Board’s jurisdiction, and REVERSE the suspension action . We also REVERSE the portion of the initial decision that sustained the charge of absence without leave (AWOL) , and VACATE the portion of the decision that sustained the removal action. We REMAND the c ase for further adjudication on the appellant’s whistleb lowing reprisal claims concerning her removal; her constructive suspension; her Novembe r 2007 reassignment; and the March 2009 actions denying her requests for leave without pay (LWOP), advanced sick leave, a nd an extension of her return -to-work date . BAC KGROUND ¶2 The appellant was employed as a Contract Specialist with the U.S. Army Engineer and Support Center in Huntsville, Alabama. Savage v. Department of the Army , MSPB Docket No. AT -0752 -11-0634 -I-2, Appeal File (I -2 AF), Tab 64, Exhibits (Exs.) A -P, AD. Beginning in late 2006, and continuing into 2007, the appellant reported what she claimed were illegal and improper contracting activities in the Ranges Program, which generally concerns the design and implementation of agency training faciliti es. I -2 AF, Tab 64, Exs. AE, AG. The appellant’s disclosures were a factor in the initiation of several command -directed inquiries, including an internal audit, which largely validated the appellant’s legal concerns, as well as an Army Regulation (AR) 15-6 inve stigation, which resulted in a report that identified the appellant by name as a source of the allegations of wrongdoing. Id., Exs. AK, EQ. ¶3 In June 2007, the appellant filed a formal equal employment opportunity (EEO) complaint, in which she alleged, int er alia, that she had been subjected to 3 harassment and a hostile work environment because of her race and sex, in violation of Title VII of the Civil Rights Act of 1 964, as amended (Title VII). I-2 AF, Tab 64, Ex. BE. On October 17, 2007, the appellant a nd the agency entered into a negotiated settlement agreement that resolved the June 2007 EEO complaint, including “any and all claims, grievances, complaints or appeals, whether perfected or not, in this or any other forum . . . relating to any matters that occurred prior to the execution of this settlement agreement.” Id., Ex. BE. The agreement provided, inter alia, that the appellant would be reassigned “to a position comparable with her current grade and salary” with the agency’s Small Business Office (SBO) in Huntsville. Id. at 1. Effective November 11, 2007, the appellant was reassigned, with no reduction in pay, from her YC -1102 -02 Supervisory Contract Specialist position, to a YA -1102 -02 Contract Specialist position with the SBO. I-2 AF, Tab 64, Exs. BE, BG. ¶4 On August 4, 2008, the appellant initiated contact with the agency’s EEO office, alleging that she had been subjected to a hostile work environment as a result of race and sex discrimination and reprisal for her prior EEO activity. Savage v . Department of the Army , MSPB Docket Nos. AT -0752 -11-0634 -B-1 and AT -1221 -12-0591 -B-1, Remand Appeal Fi le (RAF), Tab 49 at 98. At the request of the EEO office, she provided an addendum letter, dated August 15, 2008, describing numerous instances of alle ged harassment that took place following her reassignment to the SBO. Id. at 99 -112. She requested, among other remedies, that “[h]arassment . . . immediately cease and that I be allowed to do my job.” Id. at 112. Her initial contact was later followe d by a November 4, 2008 formal EEO complaint in which she identified 25 specific incidents of alleged harassment. RAF, Tab 44.2 2 The agency ultimately issued a final agency decision, dated December 28, 2010, finding that t he appellant had not established her discrimination and reprisal claims. RAF, Tab 47 at 14 -49. 4 ¶5 In addition to her EEO activity, the appellant made disclosures, beginning in June 2008, concerning what she believed to be a violation of the Federal Acquisition Regulations in the failure to utili ze Defense Department (DD) Form 2579, Small Business Coordination Record, in circumstances involving contract modifications. I -2 AF, Tab 58 at 5 -16. On August 17, 2008, the appellan t and her new first -level supervisor, Deputy Commander D.B. , had a heated discussion concerning the DD Form 2579 issue. The appellant asserts that this confrontation was “the final straw” that resulted in her again seeking psychological counseling. RAF, Tab 48 at 28. ¶6 The following day, August 18, 2008, the appellant visited her treating psychologist, Dr. B.M., who recommended an 8 -week leave of absence due to “intensifying depression, anxiety and work[ ] caused stress.” Savage v. Department of the Army , MSPB Docket No. AT -0752 -11-0634 -I-1, Initial Appeal File ( IAF), Tab 9, Subtab 4hh. D.B. granted the appellant’s request for leave through October 20, 2008. Id., Subtabs 4ff –4gg. Subsequently, on October 18, 2008, Dr. B.M. recommended that the appellant’ s leave of absence be extended until December 22, 2008. Id., Subtab 4cc. D.B. initially denied the request, but after requesting and receiving additional documentation from Dr. B.M., he granted the appellant sick leave until December 5, 2008. Id., Subta bs 4z -4cc. The appellant later submitted a leave request under the Family and Medical Leave Act (FMLA), with a certification from Dr. B.M., and D.B. granted the appellant’s request for FMLA leave through March 5, 2009. Id., Subtabs 4w -4x. ¶7 By letter date d March 4, 2009, Dr. B.M. recommended that the appellant’s return -to-work date tentatively be changed from March 5, 2009, to May 4, 2009, and the appellant requested an additional leave of absence in accordance with that recommendation. IAF, Tab 9, Subtab s 4u -4v. D.B. denied the request in large part, but approved the appellant’s use of accrued sick leave through noon on March 12, 2009. Id., Subtab 4t. On March 11, 2009, the appellant requested advanced sick leave through May 4, 2009. Id., Subtab 4s. That same day, D.B. 5 denied the request, citing the appellant’s “previous inability to return to work according to [her] psychologist’s estimates.” Id., Subtab 4r. ¶8 The appellant requested reconsideration and submitted an additional letter from Dr. B.M., d ated March 13, 2009. Id., Subtabs 4p -4q. In that letter, Dr. B.M. stated, in part: [The appellant] is experiencing severe depression and intensified anxiety related to her work environment. [She] has perceived her work environment [as] hostile and is overwhelmed with fear and anxiety over returning to that environment. Her supervisors have not been supportive and she believes that they are personally against her. Id., Subtab 4q. Dr. B.M. further opined: She has been diagnosed with Acute Stress Disord er (308.3) and Major Depression Disorder (296.33). Acute Stress Disorder is the effect of being exposed to traumatic event(s) that involves threat to self and the person’s response involves intense [helplessness]. [Her] work environment has produced thes e disturbances for her. The depression is severe, but without psychotic features. She is experiencing severe anxiety attacks, having headaches, suffering at night with nightmares, and her skin has started to break out again. She is emotionally unable to function effective[ly] within her current work environment. Id. Dr. B.M. again recommended that the appellant’s return -to-work date be extended to May 4, 2009, but indicated that this date was “tentative.” Id. D.B. again denied the appellant’s request for advanced sick leave, and also denied her subsequent request for LWOP. Id., Subtabs 4m -4o. On Apr il 3, 2009, D.B. informed the appellant that her leave was exhausted and that she therefore would be placed in an absence without leave (AWOL) status. Id., Subtab 4 l. The appellant entered AWOL status on April 2, 2009. Id., Subtab 4f.3 3 On April 3, 2009, the appellant filed another formal EEO complaint, in which she alleged that she had been subjected to a hostile work environment, based on r eprisal for her 2007 and 2008 EEO complaints. IAF, Tab 4. She named D.B. as the discriminating official and cited the denial of her request for LWOP, among other alleged retaliatory actions. Id. The agency ultimately issued a final agency decision find ing no discrimination as to the allegations set forth in her April 3, 2009 complaint. Id. 6 ¶9 On May 4, 2009, the appellant reported to work briefly but became physically ill and left after approximately 1 hour. IAF, Tab 9, Subtab 4k. In a May 6, 2009 letter, Dr. B.M. recounted the incident and recommended September 1, 2009, as a new tentative return -to-work date. Id. She reiterated her diagnosis of Acute Stress Disorder and Major Depression Disorder, and furthe r stated: “[The appellant’s] work environment has been traumatic. Returning to her work place caused a spontaneous recovery of her previous symptoms. She is emotionally unable to function effective[ly] in her current work environment.” Id. The appella nt submitted a copy of the May 6, 2009 letter to D.B. and requested that her AWOL status be converted to LWOP or advanced sick leave. Id., Subtab 4j. ¶10 In response to th at request, D.B. issued a letter to Dr. B.M., requesting additional information. Id., Subtab 4h. D.B. also requested that the appellant meet with a psychologist of his choosing for a second opinion. Id., Subtab 4i. Dr. B.M. did not respond to the request for additional information. The agency’s consulting ps ychologist , Dr. J.H., met wi th the appellant on July 8, 2009, and on July 19, 2009, he provided a written assessment based on the interview and his review of the records provided by the appellant’s psychologist. Id., Subtab 4g. He concluded, in relevant part: The present evaluatio n indicates that [the appellant] suffers a serious mental illness. The diagnostic impression was major depression, single episode, moderate to severe, with possible psychotic features, and anxiety disorder [not otherwise specified] with generalized anxiet y and panic attack features. . . . The seriousness of these conditions suggests that [the appellant] has been medically and psychologically unable to work since August 2008 because of a mental condition. Poor stress tolerance, fatigue, poor emotional con trol, extreme anxiety, panic attacks, agoraphobia, feelings of hopelessness and loss of will or determination are the factors that have made her unable to function in her role as a Corps of Engineer[s] officer and manager. It is unlikely that [the appellan t] will be able to return to the previous work in the next six to twelve months. There is 7 considerable doubt in the mind of the undersigned that she will ever return to the currently assigned workplace, but continued treatment might be helpful in bringing that about or assisting [her] to the point that she could work for the Corps in some other capacity. Id., Subtab 4g. ¶11 By notice dated September 14, 2009, D.B. proposed to remove the appellant based on three charges: (1) AWOL; (2) Excessive Absences; and (3) Unavailability to Report for Duty with No Foreseeable End. IAF, Tab 9, Subtab 4d. The appellant did not provide a response to the deciding official.4 By letter dated November 3, 2009, the deciding official notified the appellant of his decision to remove her, effective November 6, 2009. Id., Subtab 4b. ¶12 The appellant filed a timely Board appeal of her removal, raising affirmative defenses of race and sex discrimination and retaliation for EEO activity. IAF, Tab 1. In particular, she alleged that the removal was the ultimate result of the agency creating a hostile work environment where she could not perform her duties and responsibilities, which in turn led to her extended absences. Id. She specifically alleged that the hostile work environment was created following the settlement of her June 2007 EEO complaint. Id. The administrative judge dismissed the appeal without prejudice to permit the appellant additional time to file a whistleblowing retaliation complaint with the Office of Special Co unsel (OSC). IAF, Tab 22, Initial Decision. On October 11, 2011, the appellant filed a complaint with OSC, alleging that agency officials had taken various personnel actions, including her removal, in retaliation for her disclosures concerning the Ranges Program. I -2 AF, Tab 1; Savage v. Department of the Army , MSPB Docket No. AT -1221 -12-0591 -W-1, Appeal File (W-1 File), Tab 1. 4 The appellant’s attorney at the time did address the proposed removal action in an October 3, 2009 email to agency counsel. I -2 AF, Tab 64, Ex. DA. However, neit her the appellant nor her attorney responded to the deciding official, as instructed in the proposal notice, and there is no indication in the record that the deciding official received a copy of the October 3, 2009 email. 8 ¶13 After exhausting her administrative remedy with OSC, the appellant filed a timely individual right of action ( IRA) appeal and also refiled her removal appeal. I -2 AF, Tab 1; W -1 File, Tab 1. The administrative judge joined the two appeals for hearing. I -2 AF, Tab 3; W -1 File, Tab 3. In the removal appeal, the appellant raised additional affirmative defenses of disability dis crimination and retaliation for protected whistleblowing activity. I-2 AF, Tab 55. In the IRA appeal, the administrative judge determined that the appellant had established jurisdiction concerning the following personnel actions: (1) the November 2007 reassignment; (2) the December 2007 performance appraisal; (3) the failure to confer a monetary award to the appellant following a SBO conference in 2008; (4) the December 2008 performance appraisal; (5) the refusal to extend her return -to-work date in Marc h 2009; (6) the denial of her advanced sick leave request in March 2009; (7) the denial of her LWOP request in March 2009; and (8) an alleged constructive suspension based on the creation of a hostile work environment that compelled her to be absent from work from mid -August 2008, until her removal in November 2009. Id. ¶14 Following a hearing, the administrative judge issued separate initial decisions in the IRA and removal appeals. In the IRA appeal, the administrative judge determined that the appellant had made protected disclosures concerning the Ranges Program, and also had shown that they were a contributing factor in all the personnel actions at issue, except for the alleged constructive suspension. W-1 File, Tab 6, Initial Decision (W -1 ID) at 6 -13. The administrative judge noted that the appellant also had alleged a protected disclosure concerning DD Form 2579, but found that she had not exhausted her OSC remedy regarding that disclosure. W-1 ID at 8. The administrative judge then found that th e agency had shown by clear and convincing evidence that it would have taken some of the alleged retaliatory actions absent the appellant’s whistleblowing activity, but had failed to meet that burden as to the December 2007 and December 2008 performance ev aluations, and the failure to provide a monetary 9 award for the appellant’s participation in a SBO conference. W-1 ID at 13 -21. Finally, the administrative judge concluded that the appellant had failed to establish that she was constructively suspended. W-1 ID at 21 -24. ¶15 In the removal appeal, the administrative judge sustained all three charges and found that the agency had met its burden of proof regarding nexus and penalty. I -2 AF, Tab 71, Initial Decision (I -2 ID) at 4 -12. The administrative judge fu rther found that the appellant had failed to establish her affirmative defenses. I-2 ID at 12 -18. Accordingly, the administrative judge sustained the removal action. I-2 ID at 18. The appellant petitioned for review of both initial decisions. ¶16 On revi ew, the Board joined the appellant’s IRA and removal appeals and issued one precedential decision, Savage v. Department of the Army , 122 M.S.P.R. 612 (2015), overruled in part by Pridgen v. Office of Management & Budget , 2022 MSPB 31 , ¶¶ 23 -25, in which the Boa rd: (1) remanded the appellant’s constructive suspension claim for review under chapter 75 procedures; (2) directed the administrative judge to determine whether the appellant’s alleged hostile work environment constituted a personnel action for purposes of her IRA appeal; (3) directed the administrative judge to determine whether the agency established by clear and convincing evidence that its decisions concerning the appellant’s leave reque sts and/or her requested return -to-work date in March 2009 would have been the same absent her whistleblowing activity; (4) directed the administrative judge to determine whether the appellant was constructively suspended during the period for which she was charged with AWOL and, if so, reverse the charge; (5) did not s ustain the charge of excessive absences; (6) sustained the charge of unavailability for duty with no foreseeable end; (7) directed that the administrative judge reexamine the appellant’s Title VII claims under a newly articulated standard; and (8) directed the administrative judge to consider whether, in light of all pertinent record evidence, including the appellant’s disclosure concerning 10 DD Form 2579, the agency showed by clear and convincing evidence that it would have removed the appellant absent her p rotected disclosures. See generally id . The Board left undisturbed the administrative judge’s finding that the appellant was entitled to corrective action for the December 2007 and December 2008 performance evaluations and the agency’s failure to provide a monetary award for her participation in a SBO conference. The Board also left undisturbed the administrative judge’s finding that the appellant did not establish her claim of disability discrimination. See generally id . ¶17 On remand, the administrative judge conducted a supplemental hearing and issued a new initial decision addressing the issues identified in the Board’s order. RAF, Tab 63, Remand Initial Decision (RID). In the chapter 75 appeal, the administrative judge determined that: (1) the appel lant was not constructively suspended; (2) the charge of AWOL was established; (3) removal was a reasonable penalty based on the sustained charges of AWOL and unavailability for duty with no foreseeable end; (4) the app ellant failed to establish her T itle VII claims; (5) the appellant’s removal was “not motivated” by the DD Form 2579 disclosure; and (6) the agency proved by clear and convincing evidence that it would have removed the appellant absent her protected disclosures. RID at 9-27. In the IRA appe al, the administrative judge determined that: (1) the appellant was not subjected to a hostile work environment that would constitute a personnel action for purposes of the Whistleblower Protection Act of 1989, as amended (WPA); (2) the agency proved by clear and convincing evidence that it would have reassigned the appellant to the YA -1102 -02 Contract Specialist position even absent her protected disclosures concerning the Ranges program; and (3) the agency proved by clear and convincing evidence that it would have taken the same March 2009 actions concerning extending the appellant’s return -to-work date and her requests for advanced sick leave or LWOP, even absent her protected disclosures concerning the Ranges program. RID at 27 -32. Unlike the previou s initial 11 decision in the IRA appeal, the initial decision on remand did not include language ordering corrective action concerning the appellant’s 2007 and 2008 performance evaluations and the agency’s failure to provide a monetary award for her participa tion in the SBO conference. Compare W-1 ID at 25 -27, with RID at 32. ¶18 On review, the appellant argues that: (1) the agency failed to submit clear and convincing evidence concerning her 2007 reassignment; (2) the agency violated her right to due process w hen the deciding official relied on ex parte communications to evaluate the Douglas factors; (3) the administrative judge did not apply the correct legal standard in analyzing her constructive suspension claim; (4) the administrative judge mischaracte rized Dr. B.M.’s testimony; (5) the agency relied on an unlawful fitness -for-duty examination in taking the removal action; and (6) the appellant provided the agency appropriate notice of intolerable working conditions. Petition for Review (PFR) File, Tab 3 at 30-41. The agency has filed a response. PFR File, Tab 6. ANALYSIS MSPB Docket No. AT -0752 -11-0634 -B-1 The appellant established that she was constructively suspended. ¶19 Like involuntary resignations, removals, and reductions in pay or grade, involuntary leaves of absence may be appealable under chapter 75. Bean v. U.S. Postal Service , 120 M.S.P.R. 397 , ¶ 8 (2013). Although vario us fact patterns may give rise to an appealable constructive suspension, all constructive suspension claims have two things in common: (1) the employee lacked a meaningful choice in the matter; and (2) it was the agency’s wrongful actions that deprived th e employee of that choice. Id., ¶ 11. Thus, to establish Board jurisdiction over an alleged constructive suspension based on intolerable working conditions, the appellant must show both that a reasonable person would have felt compelled to absent herself under the conditions and that the agency was 12 culpable for those conditions. Id.; Peoples v. Department of the Navy , 83 M.S.P.R. 216 , ¶¶ 6-9 (1999). The issue of voluntariness is distinct from the issue of the agency’s culpability. See Bean , 120 M.S.P.R. 397, ¶ 12. ¶20 In addressing the issue of voluntariness, the administrative judge considered the appellant’s allegations that during calendar year 2008, i.e., after her reassignment to the SBO, the following occurred:  The SBO was not fully staffed;  She was excluded from meetings pertinent to the SBO;  Her initial supervisor asked her if her grandmother had any “good slave masters”;  Her initial supervisor commented that she had “nappy and greasy hair”;  She had hostile encounters with contracting office personn el;  She experienced hostility from her supervisors related to pressure from contracting office personnel;  She was subject to unprecedented job requirements ( e.g., same day or expedited reviews regardless of workload);  D.B. pressured her to develop contract review timelines at the contracting office’s request;  She was excluded from emails and meetings leading to a decision that DD Form 2579s would no longer be prepared for contract modifications;  Her comments were omitted fr om the minutes of meetings on the DD Form 2579 issue;  On August 17, 2008 she “ confronted” D.B. about “his unlawful directive to halt the [DD Form] 2579 review on contract modifications” and he responded by “screaming” at her . RID at 10 -11; RAF, Tab 48 at 23-28; Hearing Transcript (HT), May 10, 2016, (testimony of the appellant).5 The administrative judge concluded that the incidents in question, taken singly or together, were not of sufficient severity that 5 The hearing on remand was co nducted on April 27 -28 and May 10, 2016. Written transcripts are attached to the appellant’s petition for review. PFR File, Tab 3. 13 a reasonable person would have been compelled to stop reporting for duty. RID at 11-12.6 ¶21 However, the parties and their respective medical witnesses are in agreement that, beginning on August 18, 2008, and continuing through her removal, the appellant was medically incapacitated from returning to her workplace. IAF, Tab 9, Subtabs 4g, 4q, 4aa. Under these circumstances, we must conclude that the appellant’s absences were involuntary. See Bean , 120 M.S.P.R. 397 , ¶ 13 (rejecting the notion that “working outside medical restrictions is somehow a viable option for federal employees”); see also Moore v. U.S. Postal Service , 117 M.S.P.R. 84 , ¶ 12 (2011) (finding a nonfrivolous allegation of an involuntary absence when the appellant’s psychologist stated that anxiety caused by her working conditions rendered her u nable to work, and subsequently diagnosed her with post -traumatic stress disorder and recommended a transfer); Peoples , 83 M.S.P.R. 21 6, ¶ 11 (finding nonfrivolous allegations of involuntary absences when each appellant asserted that the employer -retained counseling service diagnosed that she would suffer emotional injury or harm if she returned to work alongside a coworker who engaged i n continuing bizarre behavior, and all but one appellant subsequently was advised by her individual psychiatrist that her symptoms would worsen and she would suffer injury or harm emotionally if she returned to work). Hence, whether the appellant suffered a constructive suspension turns on the element of culpability, i.e., 6 On review, the appellant contends that the administrative judge should have considered all 25 incidents listed in her 2008 EEO complaint, as well as an additional 12 incidents listed in her 2007 EEO complaint, in determining whether her absences were invol untary. PFR File, Tab 3 at 35 n.42. It is unnecessary to decide whether the appellant is correct on this point because, as discussed below, we find the appellant’s absences were involuntary due to her medical incapacitation. 14 whether her incapacitation and resulting absences are attributable to wrongful actions by the agency. See Bean , 120 M.S.P.R. 397 , ¶ 11.7 ¶22 On this issue, the record contains conflicting evidence. Specifically, while Dr. B.M. and Dr. J.H. agreed that the appellant’s incapacitation was caused at least in part by her stressful working conditions, they differed as to whether her condition was caused by an objectively hostile work environment, for which the agency might be held culpable, or was the result of other environmental factors and the appellant’s own predisposi tion to anxiety and depression. Dr. B.M. testified that, in her view, the appellant’s hostile work environment was the sole cause of her depression and resulting incapacitation. 8 HT, May 10, 2016 (testimony of Dr. B.M.). In contrast, Dr. J.H. disagreed with Dr. B.M.’s assessment that the appellant’s working conditions were a sufficient explanation 7 To establish the agency’s culpability , the appellant must show, at minimum, that she put the agency on notice of the objectionable working conditions and requested assistance or remediation from the agency. Wege ner v. Department of the Interior , 89 M.S.P.R. 644 , ¶ 8 (2001) , overruled in part on other grounds by Abbott v. U.S. Postal Service , 121 M.S.P.R. 294 (2014) ; Peoples , 83 M.S.P.R. 216 , ¶ 8 . The required notice need not take the form of a request for accommodation under the Rehabilitation Act. Savage , 122 M.S.P.R. 612 , ¶ 21. Nonetheless, the agency must be put on notice of the specific nature of the conditions and the employee’s inability to cope with them before it can be expected to investigate, attempt remediation of the conditions if necessary, or to consider finding other duties or positions for the employee pending resolution of the complaints. Peoples , 83 M.S.P.R. 217, ¶ 9. Hence, the agency’s knowledge of the intolerable working conditions, whether actual or constru ctive, must be shown to establish a culpable connection between the objectionable conditions and the agency’s duty —if any —to alleviate the conditions. Id. We agree with the appellant that she provided the required notice and request for remediation in he r August 2008 contact with the agency’s EEO office, in which she described in detail numerous incidents of alleged harassment and specifically requested that the agency put an end to what she viewed as a hostile work environment. RAF, Tab 49 at 98 -118. 8 We agree with the appellant that Dr. B.M.’s testimony on this point was unambiguous, notwithstanding her reference to the appellant’s “perception” of a hostile work environment. PFR File, Tab 3 at 36 -38. Nothing in Dr. B.M.’s testimony or written report s suggests that she believed the appellant’s perception was incorrect. Notably, Dr. J.H. agreed that Dr. B.M. had “confidently” identified the appellant’s hostile work environment as the cause of her psychological ailment. HT, Apr. 27, 2016 (testimony of Dr. J.H.). 15 for her incapacitation, and instead concluded that the appellant already suffered from a mental illness that affected her abili ty to perceive her work environment objectively. HT, Apr. 27, 2016 (testimony of Dr. J.H.). ¶23 In assessing the probative weight of medical opinions, the Board considers, inter alia, the extent and duration of the expert’s familiarity with the appellant’s treatment. Slater v. Department of Homeland Security , 108 M.S.P.R. 419 , ¶ 16 (2008). Here, Dr. B.M. observed the appellant in 75 sessions over 5½ years. HT, May 10, 2016 (testimony of Dr. B.M.). Dr. B.M. testified in the remand hearing that, based on those sessions, and the tests she administered, she found that the appellant was not otherwise disposed toward depression and that, as no other factors were apparent, that finding essentially validated the appellant’s claim that she was subjected to a hostile work environment. Id. In contrast, Dr. J.H. performed only a one -time evaluation of the appellant. He acknowledged during his testimony that, in conducting that evaluation, he did not endeavor to find the cause of the appellant’s condition, as he was not tasked to do so. HT, Apr. 27, 2016 (testimony of Dr. J.H.). On balance, we find Dr. B.M. ’s opinion on this point more persua sive. Accordingly, we find that the appellant has shown by preponde rant evidence that a hostile work environment was the primary cause of her medical inability to return to work during the period from August 18, 2008, until her removal. ¶24 Because the a gency is culpable for subjecting the appellant to the hostile work environment that resulted in her incapacitation, we conclude that her absence from August 18, 2008, until her removal, constituted a constructive suspensio n within the Board’s jurisdiction. We further find that the suspension action cannot be sustained , because it was effected without minimum due process, i.e., notice and an oppo rtunity to respond . See Mc Lain v. U.S. Postal Service , 82 M.S.P.R. 526 , ¶ 10 (1999). Because the suspension action must be reversed regardless of the outcome on remand, we order the agency to cancel the action and provide appropr iate back pay and benefits , if any, for the period from 16 August 18, 2008, to her removal . See Martin v. U.S. Postal Service , 123 M.S.P.R. 189 , ¶ 14 (2016); Mc Lain , 82 M.S.P.R. 526 , ¶ 11. We do not sustain the charge of AWOL in the removal action. ¶25 As noted above, the agency based its removal action on three charges: excessive absences, unavailability for duty with no foreseeable end, and AWOL. In our previous remand order, we determined that the agency failed to prove the charge of excessive absenc es, but did establish the charge of unavailability for duty with no foreseeable end. Savage , 122 M.S.P.R. 612, ¶¶ 30 -34. Concern ing the charge of AWOL, we noted that finding that the appellant had been constructively suspended during the period she was charged AWOL would mean that her absences resulted from the agency’s wrongful actions. Id., ¶ 29. In such a case , it would have b een unreasonable for the agency to deny the appellant’s request for leave to cover those absences. Id. Accordingly, we directed that, if the administrative judge determined on remand that the appellant was constructively suspended during the period for w hich she was charged AWOL, the charge should not be sustained. Id. We have here found, contrary to the remand initial decision, that the appellant was constructively suspended. Accordingly, we do not sustain the AWOL charge. The appellant has not established that the agency violated Title VII, denied her due process, or relied on an unlawful psychological examination in removing her. ¶26 Concerning the appellant’s affirmative defenses, the administrative judge found below that th e appellant did not prove her Title VII claims. RID at 19 -24. In particular, he found that these claims failed because the appellant did not meet her initial burden of proving that her race, sex, or protected EEO activity was a motivating factor in the a gency’s decision to remove her.9 Id.; see Savage , 9 In finding that the appellant failed to show that her race, sex, or protected EEO activity was a motivating factor in her removal, the administrative judge addressed separately the several kinds of evidence identified in Savage , including direct evidence 17 122 M.S.P.R. 612 , ¶ 41 (holding that a violation of 42 U.S.C. § 2000e -16 is established if a prohibited consideration was a motivating factor in the contested personnel action). We discern no error in tha t finding, and the appellant does not dispute it on review.10 ¶27 For the first time on review, the appellant further contends that the agency denied her due process in removing her because the deciding official allegedly engaged in ex parte communications co ncerning the Douglas factors. PFR File, Tab 3 at 32 -34; see Ward v. U.S. Postal Service , 634 F.3d 1274 , 1280 (Fed. Cir. 2011) (holding that “ex parte communications introducing information material to the penalty run astray of the due process requirements of notice and an opportunity to be heard”). Generally, the Board will not consider an argument raised for the first time on petition for revie w 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). In any event, the appellant has not identified any ex parte communication that was material to the deciding official’s penalty selection. Rather, she alleges that and three varieties of indirect evidence. RID at 20 -23; see Savage , 122 M.S.P.R. 612 , ¶ 42. Subsequent to the rema nd initial decision, the Board issued Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647 (2016), clarified by Pridgen v. Office of Management & Budget , 2022 MSPB 31 , ¶¶ 23 -24, in which we clarified that, in determining whether an appellant has m et her initial burden to show that a prohibited consideration was a motivating factor, “all evidence belongs in a single pile and must be evaluated as a whole.” Id., ¶¶ 29-30 (quoting Ortiz v. Werner Enterprises , Inc., 834 F.3d 760 (7th Cir. 2016) ). Although the administrative judge did not have the benefit of Gardner , which might have allowed for a more streamlined analysis, we agree with his conclusion that the appellant failed to meet her initial burden of showing that her race, sex or protected EEO activity was a m otivating factor in her removal. 10 Because we affirm the administrative judge’s finding that the appellant failed to meet her initial burden to prove that race, sex, or retaliation for EEO activity were motivating factors in the agency’s decision, we need not resolve the issue of whether the appellant proved that discrimination or retaliation was a “b ut-for” cause of the agency’s decisions. See Pridgen v. Office of Management & Budget , 2022 MSPB 31 , ¶¶ 20-22, 29 -33. 18 the individuals with whom the deciding official conferred failed to communicate information concerning her whistleblowing activity. PFR File, Tab 3 at 32 -34. If so, it is not apparent how the alleged concealment of this information would implicate Ward or otherwise represent a due process violation. Accordingly, while we have found that the appellant was denied due process with respect to her constructive suspension, we find that she was not denied due process with respect to the removal action. ¶28 The appellant also argues on review that the removal a ction should be reversed because it was based on an allegedly unlawful psychiatric examination. PFR File, Tab 3 at 38 -40. It appears the appellant made a variation of this argument at the conclusion of the hearing on remand, HT, May 10, 2016, at 175, but the issue was not within the scope of the Board’s remand order, and it is unclear why she could not have raised it at an earlier stage of the proceedings. In any event, we are not persuaded by the appellant’s argument, because the record does not show th at she was ever ordered to undergo a psychiatric examination. Rather, D.B. indicated in his May 29, 2009 letter that he was “requesting” that the appellant meet with Dr. J.H., at no cost to her, in order to provide the agency with additional information n eeded to rule on her leave request. IAF, Tab 9, Subtab 4i. The Board has held that an agency may offer, rather than order, a medical examination, including a psychiatric evaluation, in any situation where the agency needs additional medical documentation to make an informed management decision. Doe v. Pension Benefit Guaranty Corporation , 117 M.S.P.R. 579 , ¶ 27 (2012); 5 C.F.R. § 339.302 . Accordingly, we find no merit to this affirmative defense. Remand is necessary to fully adjudicate the appellant’s affirmative defense of whistleblowing retaliation. ¶29 Although the appellant failed to establish her other affirmative defenses, we find that her affirmative defense of whistleblowing retaliation requires further adjudication. First, the administrative judge appears to have erred in finding that 19 the appellan t’s removal was “not motivated by” her disclosure concerning DD Form 2579.11 RID at 24 -25. If the administrative judge meant by this that the disclosure was not a contributing factor in the appellant’s removal, his finding is not consistent with the recor d, as it is undisputed that the appellant made the disclosure directly to D.B., who proposed her removal approximately 13 to 15 months later. These facts alone are sufficient to establish the contributing factor element under the knowledge/timing test of 5 U.S.C. § 1221 (e)(1). See Schnell v. Department of the Army , 114 M.S.P. R. 83 , ¶ 22 (2010) (holding that a personnel action taken within 1 or 2 years of a protected disclosure is sufficiently close in time to satisfy the timing prong of the knowledge/timing test). Thus, we find that the appellant has established her prima fac ie case concerning the DD Form 2579 disclosure. ¶30 Furthermore, we find that the administrative judge did not fully analyze the issue of whether the agency proved by clear and convincing evidence that it would have removed the appellant absent her protected d isclosures. In determining if an agency has shown by clear and convincing evidence that it would have taken the same personnel action absent whistleblowing, the Board will consider the following three factors: the strength of the agency’s evidence in sup port 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 otherwise similarly situated. Carr v. Social Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999). The Board does not view the Carr factors as discrete elements, e ach of which the agency must prove by clear and convincing evidence, but rather weighs these factors together to determine whether the 11 We find that the appellant had a reasonable belief, correct or not, that the failure of the SBO to use DD Form 2579 to record contract modifications was in violation of an agency rule, in effect at the time of her disclosure, requiring the use of DD Form 2579 for all actions over a certain dollar amount. RAF, Tab 59 at 7 -15. Accordingly, we conclude that her disclosure was protected under 5 U.S.C. § 2302 (b)(8)(A)(i). 20 evidence is clear and convincing as a whole. Lu v. Department of Homeland Security , 122 M.S.P.R. 335 , ¶ 7 (2015). Our reviewing court has further clarified that “[e]vidence only clearly and convincingly supports a conclusion when it does so in t he aggregate considering all the pertinent evidence in the record, and despite the evidence that fairly detracts from that conclusion.” Whitmore v. Department of Labor , 680 F.3d 1353 , 1368 (Fed. Cir. 2012); see Lu , 122 M.S.P.R. 335, ¶ 10. ¶31 In the initial decision in the refiled appeal, the administrative judge addressed only the first Carr factor, finding in effect that the agency had met its burden by virtue of having proven its charges. I -2 ID at 17 -18. Accordingly, in our previous remand order, we instructed the adm inistrative judge to revisit the question of whether the agency proved by clear and convincing evidence that it would have removed the appellant absent her protected disclosures. Savage , 122 M.S.P.R. 612 , ¶ 52. In particular, we noted that the full Board had not sustained the charge of excessive absences, and that the merits of the AWOL charge remained to be decided on remand. Id. We further found that the administrative judge should consider the question of whether the appellant’s incapacitation and resulting absences were themselves a product of whistleblowing reprisal. Id.; see Whitmore , 680 F.3d at 1376. It was not our inten t however, to suggest that examining these issues would obviate the need to conduct a complete Carr factors analysis. ¶32 On remand, the administrative judge determined that the AWOL charge, which he had sustained, together with the sustained charge of unavailability for duty without foreseeable end, “amply justify removal.” RID at 25. Having so found, he concluded that, “given the appellant’s misconduct . . . the agency met its high burden of proving it would have removed her absent the protected disclosures.” RID at 25. Thus, as in the first initial decision, the admin istrative judge erroneously relied solely on the strength of the agency’s reasons, i.e., the first Carr factor, in finding that the agency met its burden under the clea r and 21 convincing test. Moreover , the first Carr factor must itself be reassessed, given our finding that the agency did not establish the AWOL charge. ¶33 In light of the above, we find that further adjudication, including explicit consideration of all three Carr factors, i s needed to resolve the question of whether the agency proved by clear and convincing evidence that it would have removed the appellant absent her protected disclosures involving the Ranges Program and DD Form 2579. We find that the administrative judge i s in the best position to complete the Carr factors analysis, having heard the live testimony. See Shibuya v Department of Agriculture , 119 M.S.P.R. 537 , ¶ 37 (2013). If, on remand, the administrative judge determines that the agency failed to show by clear and convincing evidence that it would have removed the appellant absent her protected disclosures, he should reverse the actio n. If the administrative judge finds that the agency did make the required showing, he sho uld make a new finding as to whether , based on the single sustained charge, the agency met its burden of proof on nexus and penalty. As discussed above, the appel lant has also alleged that the agency constructively suspended her in retaliation for her prot ected disclosures. The administrative judge did not address that claim below, having found the appellant was not constructivel y suspended . However, g iven our fi nding that the appellant was constructively suspended, it is necessary to determine whether t he appellant’s prote cted disclosures regarding the Ranges Program and DD For m 2579 disclosure) were a contributing factor in that action and, if so, whether the ag ency can show by clear and convincing evidence that the constructive suspension would have occurred in the absence of the appellant’s protected disclosures. On remand, the administ rative judge should address these questions , applying the same principles d iscussed above. 22 MSPB Docket No. AT -1221 -12-0591 -B-1 The appellant’s allegations of a hostile work environment establish a significant change in working conditions under 5 U.S.C. § 2302 (a)(2)(A)(xii). ¶34 Under the WPA, a “personnel action” is defined to include, among other enumerated actions, “any other significant change in duties, responsibilities, or working conditions.” 5 U.S.C. § 2302 (a)(2)(A)(xii). The legislative history of the 1994 amendment to the WPA indicates that “any other significant change in duties, responsibilities, or working conditions” should be interpreted broadly, to include “any harassment or discrimination that could have a chilling effect on whistleblowing or otherwise undermine the merit system and should be determined on a case -by-case basis.” 130 Cong. Rec. H11,419, H11,421 (daily ed. Oct. 7, 1994) (statement of Rep. McCloskey); see Skarada v. Department of Veterans Affairs , 2022 MSPB 17 , ¶ 14; Savage , 122 M.S.P.R. 612 , ¶ 23; Roach v. Department of the Army , 82 M.S.P.R. 464 , ¶ 24 (1999 ); Shivaee v. Department of the Navy , 74 M.S.P.R. 383 , 388 (1997). Accordingly, in our previous remand order, we found that the ap pellant’s claim of a hostile work environment should be considered as an alleged personnel action for purposes of her IRA appeal. Savage , 122 M.S.P.R. 612, ¶ 23. ¶35 However, notwithstanding the broad interpretation accorded to the term “significant change in duties, responsibilities, or working conditions,” not every agency action is a “personnel action” under the WPA. Skarada , 2022 MSPB 17 , ¶ 15; see King v. Department of Health & Human Services , 133 F.3d 1450 , 1453 (Fed. Cir. 1998). Rather, an agency action must have practical consequences for the employee to constitute a personnel action . Skarada , 2022 MSPB 17 , ¶ 15. In determining whether an appellant has suffered a “significant change” in his duties, respon sibilities, or working conditions, the Board must consider the alleged agency actions both collectively and individually. Id., ¶ 16; see Holderfield v. Merit Systems Protection Board , 326 F.3d 1207 , 1209 (Fed. Cir. 2003). A number of agency actions may amount to a covered “significant 23 change” personnel action collectively, even if they are not covered personnel actions individually. Skarada , 2022 MSPB 17 , ¶ 16. To constitute a significant change in working conditions, however, a series of minor agency actions must be pervasive and occur over an extended period of time. Id. In sum, 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 responsibil ities will be found to constitute a personnel action covered by 2302(a)(2)(A)(xii). ¶36 Here, the appellant described numerous acts of alleged harassment, occurring over an extended period of time, involving staffing issues, perceived exclusions from meetings or email discussions, disagreements with contracting office personnel and her own supervisors over work policies and procedures, and an extremely heavy workload. RAF, Tab 48 at 23 -28; HT, May 10, 2016 (testimony of the appellant). As discussed above, we have found that the appellant suffered from a work environment that was the primary cause of her incapacitation and resulting absences. Supra ¶ 22. In light of that finding , we conclude that the alle ged incidents of harassment, considered collectively, contributed to a “significant change in working conditions” as defined at 5 U.S.C. § 2302 (a)(2)(A)(xii). Accordingly, on remand, the administrative judge should determine whether the appellant’s protected disclosures concerning the Ranges Program were a contributing factor in that change in working conditions and, if so, whether the agency would have impose d that change in working conditions in the absence of those protected disclosures. Further adjudication is needed to determine whether the agency proved by clear and convincing evidence that it would have reassigned the appellant to a nonsupervisory YA -02 Contract Specialist position, and taken the March 2009 actions absent her protected disclosures concerning the Ranges Program. ¶37 In our previous remand order, we found that further adjudication was needed to determine whether the agency met its burden of p roof under the clear 24 and convincing standard regarding the appellant’s November 11, 2007 reassignment and the March 2009 actions denying her requests for LWOP, advanced sick leave, and an extension of her return -to-work date. As noted above, in determinin g whether the agency has proven by clear and convincing evidence that it would have taken a personnel action absent the appellant’s whistleblowing activity, the Board will consider all relevant factors, including the following: (1) the strength of the age ncy’s evidence in support of its action; (2) the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and (3) any evidence that the agency takes similar actions against employees who do no t engage in such protected activity, but who are otherwise similarly situated. Carr , 185 F.3d at 1323 . Moreover, the Board must consider all the pertinent evidence in the record, and must not exclude or ignore countervailing evidence by only looking at t he evidence that supports the agency’s position. See Whitmore , 680 F.3d at 1367 -70. ¶38 In finding that the agency met its burden as to these actions, the administrative judge implicitly considered the first Carr factor, finding that the agency acted reasona bly in reassigning the appellant to her Contract Specialist position at the SBO, and in denying her requests for advanced sick leave, LWOP, and/or an extension of her return -to-work date. RID at 29 -32. However, as with the whistleblowing defense in the r emoval action, the administrative judge did not conduct a full analysis of the Carr factors. RID at 29 -31. As noted above, the administrative judge is in the best position to correct this oversight, having heard the live testimony. See Shibuya , 119 M.S.P.R. 537 , ¶ 37. Accordingly, on remand, the administrative judge should conduct a new analysis of the clear and convincing test, consistent with Carr and Whitmore , over the November 11, 2007 reassignment and the March 2009 actions. 25 ORDER ¶39 We remand the case to the Atlanta Regional Office for further adjudication, consistent with this Order , regarding the appellant’s claims that (1) her removal and constructive suspension were the result of retaliation for her disclosures concerning the Ranges Program and Form DD 2579; and (2) the appellant’s November 11, 2007 reassignment, the agency’s March 2009 actions , and the imposition of a host ile work environment were the result of retaliation for protected disclosures concerning the Ranges Program. Regardless of the outcome, the administrative judge should again order corrective action concerning the appellant’s 2008 and 2009 performance eval uations and the agency’s denying a bonus for participation in the SBO conference. ¶40 Notwithstanding the remand proceedings, we ORDER the agency to cancel the appellant’s constructive suspensio n for the period from August 18, 2008, to November 6 , 2009.12 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 d ate 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 decis ion. 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. 12 Given that the appellant wa s unable to work and was not formally suspended, cancellation of the action will presumably involve retroactively placing her in LWOP and/or sick leave status for the relevant period. 26 ¶42 We further ORDER the agency to tell the appella nt 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 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). ¶44 For agencies whose payroll is administered by either the National Finance Center of t he 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 ti mely 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. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations DFAS BACK PAY CHECKLIST The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following checklist to ensure a request for payment of back pay is complete. Missin g documentation may substantially delay the processing of a back pay award. More information may be found at: https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx. NOTE: Attorneys’ fees or other non -wage payments (such as d amages) are paid by vendor pay, not DFAS Civilian Pay. ☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the specific dates of the back pay period within the ticket comments. Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket comments as to why the documentation is not applicable: ☐ 2) Settlement agreement, administrative determination, arbitrator award, or order. ☐ 3) Signed and c ompleted “Employee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee in a job undertaken during th e back pay period to replace federal employment. Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also, include record of any unemployment earning statements, workers’ compensation, CSRS/FERS retirement annuity payments, ref unds of CSRS/FERS employee premiums, or severance pay received by the employee upon separation. Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment they may have received. The payroll office must collect the debt from the back pay award. The annual leave will be restored to the employee. Annual leave that exceeds the annual leav e ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g). 2 NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES Below is the information/documentation required by National Finance Center to process payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit Systems Protection Board, EEOC, and courts . 1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information describing what to do in accordance with 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/Pe rsonnel Operations at 504 -255-4630.	SAVAGE_TOMMIE_G_AT_0752_11_0634_B_1_REMAND_ORDER_1973687.pdf	2022-10-31	null	S	NP
3,971	https://www.mspb.gov/decisions/nonprecedential/FIELDS_ROBERT_A_SF_0752_17_0022_I_1_FINAL_ORDER_1973867.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ROBERT A. FIELDS, Appellant, v. DEPARTMENT OF THE IN TERIOR, Agency. DOCKET NUMBER SF-0752 -17-0022 -I-1 DATE: October 31, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Brook L. Beesley , Alameda, California, for the appellant. Kathleen Marion Carr and Scott Wesley Hulbert , Boise, Idaho, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member Member Limon recused himself and did not participate in the adjudication of this appeal. FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his appeal of his allegedly involuntary retirement for lack of jurisdiction. Generally, we grant petitions such as this one only in the following 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 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. Therefore, we DENY the petition for review. Except as expressly MODIFIED to supplement the initial decision’s discussion of the appellant’s reasonable accommodation arguments , we AFFIRM the initial decision. ¶2 The appellant asserts that he was forced to retire because a loud generator that he worked near was causing him a loss of hearing and the agency refused to provide him with a reasonable accommodation. Initial Appeal File (IAF), Tab 5 at 5-7; Petition for Review (PFR) File, Tab 3 at 2-6. An agency’s denial of a reasonable accommodation to an eligible employee is a factor to be considered in determining whether the agency coerced the employee’s resignation or retirement. Brown v. U.S. Postal Service , 115 M.S.P.R. 609 , ¶ 16, aff’d , 469 F. App’x 852 (Fed. Cir. 2011). Based at least in part on her observation of witnesses testifying at the hearing, the administra tive judge found that , prior to his retirement, the appellant was offered reassignments that would have accommodated his concern about protecting his hearing ability . IAF, Tab 24, Initial Decision (ID) at 7-11. On review, the appellant has made no more t han a bare assertion that the offered reassignments , which he declined to take, would have failed to protect his ability to hear. PFR File, Tab 3 at 4 n.3. Because we are aware of no sufficiently sound reasons for disturbing the administrative judge’s credibility findings, we affirm 3 her conclusion that the agency offered the appellant reassignments that would have protected his sense of hearing. Haebe v. Dep artment of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002); Voorhis v. Department of Homeland Security , 116 M.S.P.R. 538, ¶ 18 (2011), aff’d , 474 F. App’x 778 (Fed. Cir. 2012). ¶3 We find that, assuming arguendo that the appellant may have been entitled to another form of reasonable accommodation that the agency failed to provide,2 he still had the option of safely continuing his employment by acceptin g any of the offered reassignments. See Brown , 115 M.S.P.R. 609 , ¶ 17 (finding that the appellant’s performance with the agency, for more than 2 years after it denied her request for an accommodation, indicated that she had the option to continue working following the denial). If the appellant believed that the agency was failing to provide him with a reasonable accommodation to wh ich he was entitled, then he also could have filed an equal employment opportunity complaint. See Axsom v. Department of Veterans Affairs , 110 M.S.P.R. 605 , ¶ 17 (2009). Accordingly, we find that his decision to retire, rather than contest the agency’s actions in the appropriate forum, was voluntary. Id., ¶¶ 17 -18. ¶4 The appellant also seems to argue that the agency’s violation of its own procedures constituted a failure to engage in the interactive process.3 PFR File, 2 Reassignment to the next lower -level position for which an employee is qualified may constitute a reasonable accommodation if an equivalent position is unavailable. Gonzale z-Acosta v. Department o f Veterans Affairs , 113 M.S.P.R. 277 , ¶ 14 (2010) . An agency’s reassignment obligation is not limited by geographical area, facility or personnel system. Id., ¶ 14 n.6. Thus, if the agency failed to conduct an appropriate search for an available equivalent position before offering the appellant a lower -level position, it may have overlooked a position to which he may have bee n entitled as a reasonable accommodation. 3 The administrative judge indicated that the appellant should have submitted a written request for an accommodation in order to enter “the official reasonable accommodation process.” ID at 11. However, although an employee must generally inform their agency when an accommodation is needed, such a request need not be in writing. White v. Department of Veterans Affairs , 120 M.S.P.R. 40 5, ¶ 15 n.6 (2013). Any error on this point, however, is immaterial to the outcome for the reasons set forth in this Final Order. 4 Tab 3 at 2, 5 -6. However, the refusal to engage in the interactive process alone does not constitute a failure to accommodate. Sanchez v. Department of Energy , 117 M.S.P.R. 155 , ¶ 18 (2011). Regardless, for the reasons set forth above, we find that any procedural error did not deprive the appellant of choice in the matter of his retirement. See Bean v. U.S. Postal Service , 120 M.S.P.R. 397 , ¶ 8 (2013). Absent an otherwise appealable action, his claims of discrimination and procedural error are not an independent source of jurisdiction. See Brown , 115 M.S.P.R. 609 , ¶ 10 (finding that the Board will consider allegations of discrimination and reprisal only insofar as those allegations relate to the issue of voluntariness and not whether they would establish discrimination or reprisal as an aff irmative defense) . ¶5 The appellant further argues that the administrative judge erred by not requiring the agency to provide , first, all of its discovery submissions in hardcopy , and, second, contact information for retired Federal employees noticed for de position. PFR File, Tab 3 at 4; IAF, Tab 20 at 2, Tab 22 at 3-4. The administrative judge denied the appellant’s first request because he failed to timely file a motion to compel in accordance with the Board’s regulations . IAF, Tab 21 at 9 ; 5 C.F.R. §§ 1201.71 , 1201.73 . She denied the second request both because she found that the agency had properly responded to the appellant’s discovery requests, and because the appellant’s deadline to compel a further response had passed. IAF, Tab 21 at 7-9. Because on review the appellant makes no more than a conclusory assertion that the administrative judge erred in denying his requests and fails to show how any such error affected the outcome of the case, his argument does not establish a basis for granting the petition for review. See Vores v. Department of the Army , 109 M.S.P.R. 191 , ¶ 14 (2008), aff’d , 324 F. App’x 883 (Fed. Cir. 2009) ; 5 C.F.R. § 1201.115 (c). For the reasons set forth above, except as expressly modified by this Final O rder, we affirm the initial decision and dismiss this appeal for lack of jurisdiction. 5 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 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 Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 6 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, t hen you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of 7 discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at the ir respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Op erations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, t hen you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employ ment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opp ortunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 8 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 iss uance of this decision. 5 U.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.uscourt s.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of compete nt jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 9 Board neither endor ses 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	FIELDS_ROBERT_A_SF_0752_17_0022_I_1_FINAL_ORDER_1973867.pdf	2022-10-31	null	SF-0752	NP
3,972	https://www.mspb.gov/decisions/nonprecedential/GONZALEZ_SHAWN_DC_4324_15_0636_B_1_FINAL_ORDER_1973938.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SHAWN GONZALEZ, Appellant, v. DEPARTMENT OF AGRICU LTURE, Agency. DOCKET NUMBER DC-4324 -15-0636 -B-1 DATE: October 31, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Shawn Gonzalez , Beaverdam , Virginia, pro se. Sandra Santos , Fairfield, California , for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the remand initial decision, which denied her request for corrective action in connection with her Uniformed Services Emplo yment and Reemployment Rights ( USERRA) appeal. Generally, we grant petitions such as this one only in the following circumstances: the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error 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. T herefore, we DENY the petition for review and AFFIRM the remand initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 The appellant, a disable d veteran, was terminated during probation from her position as a GS -5 Area Technician based on charges of inappropriate conduct and unacceptable performance. The administrative judge issued an initial decision that dismissed her appeal of that action for lack of jurisdiction. Gonzalez v. Department of Agriculture , MSPB Docket No. DC-315H -15-0114 - I-1, Initial Decision at 1, 9 (Dec. 12, 2014). In a Final Order, the Board denied the appellant’s petition for review, but forwarded for docketing as a USERRA appeal claim, raised for the first time on review, that the agency terminated her based on her military service. Gonzalez v. Department of Agriculture , MSPB Docket No. DC-315H -15-0114 -I-1, Final Order at 6 -7 (Apr. 17, 2015). Upon consideration of that cla im, the administrative judge found that the appellant failed to make nonfrivolous allegations of jurisdiction under the USERRA statute and again dismissed the appeal for lack of jurisdiction. Gonzalez v. Department of Agriculture , MSPB Docket No. DC -4324 -15-0636 -I-1, Initial Decision at 1, 3 3-5 (June 18, 2015). On the appellant’s petition for review, the Board agreed that she failed to nonfrivolously allege that the agency retaliated against her for pursuing or assisting another individual in pursuing his USERRA rights, and that therefore the portion of her claim alleging a violation of 38 U.S.C. § 4311 (b) was properly dismissed for lack of jurisdiction. Gonzalez v. Department of Agriculture , MSPB Docket No. DC-4324 -15-0636-I-1, Remand Order at 3 -4 (Nov. 23, 2015) (Remand Order) . The Board found, however, that the appellant did establish jurisdiction over her USERRA discrimination claim under 38 U.S.C. § 4311 (a) because she nonfrivolously alleged that she performed duty in a uniformed service of the United States, that the agency denied her a benefit of employment by terminating her during probation, and that the action was due to her performance of duty in the u niformed service, the latter finding based on her claim that her second -level supervisor was motivated by the appellant’s military service in terminating her employment. Id. at 5-7. The Board noted that the appellant requested a decision on the written r ecord below, waiving her right to a hearing, id. at 7, but remanded the appeal for the administrative judge to rule on the appellant’s motion to compel discovery and, following any discovery deemed appropriate, for adjudication of the appellant’s USERRA ap peal on the merits, id. at 8. ¶3 After addressing and resolving the parties’ outstanding discovery matters, Gonzalez v. Department of Agriculture , MSPB Docket No. DC-4324 -15-0636 - B-1, Remand File ( RF), Tabs 3, 9, 20, the administrative judge issued a decisi on on the written record in which she found that the appellant failed to demonstrate by preponderant evidence that her military service was a motivating or substantial factor in the agency’s decision to terminate her during her probationary period. RF, Tab 52, Remand Initial Decision (RID) at 4 -11. The administrative judge further found that, even if the appellant had met her burden, the agency demonstrated that it would have terminated her notwithstanding her military 4 service. RID at 11 -12. Accordingly , the administrative judge denied the appellant’s request for corrective action.2 RID at 2. ¶4 The appellant has filed a petition for review, Petiti on for Review (PFR) File, Tab 1; the agency has responded in opposition, PFR File, Tab 2; and the appellant ha s filed a reply, PFR File, Tab 4.3 ANALYSIS ¶5 On review, the appellant challenges the administrative judge’s credibility determinations and findings. For example, the appellant argues that the administrative judge failed to consider evidence that the appell ant’s second -level supervisor’s testimony was, in her view, self -serving, that she called into question his “character and bias,” PFR File, Tab 1 at 5 -6, as well as that of the appellant’s immediate supervisor, the Employee Assistance Program Coordinator, a Human Resources Specialist, and the appellant’s second -level supervisor’s Assistant, id. at 10, and that her immediate supervisor delegated her supervisory duties to the appellant’s coworker, id. at 7. 2 The administrative judge’s statement at the end of the remand initial decision , that “[t]he agency’s action is AFFIRMED,” RID at 12, is an inadvertent error. The correct disposition of this case is, as the administrative judge indicated at the beginning of the remand initial decision, a denial of the appellant’s request for corrective action. RID at 2. 3 Well after the close of the reco rd on review, the appellant filed a request for leave to file an additional pleading. She asserted that the pleading is based on new and material evidence affecting the credibility of a witness who testified during the hearing before the administrative ju dge. According to the appellant, the evidence, which was unavailable to her prior to the close of the record on review, shows that the witness has secured new employment, and that he had the opportunity and capacity to observe USERRA violations and the ex perience and expertise necessary to recognize such violations in the absence of any conversations. PFR File, Tab 6. The Board may accept additional pleadings, other than those provided for in 5 C.F.R. § 1201.114 (a), only if the evidence is new and material and the party submitting it shows that it was not available prior to the close of the record on review. 5 C.F.R. § 1201.114 (k). Although the appellant asserts that the evidence she seeks to present was previously unavailable, she has not shown, nor are we persuaded, that it is material. 5 C.F.R. § 1201.115 (d). Therefore, we DENY the appellant’s request to file an additional pleading. 5 ¶6 In determining whether the appellant proved by prepo nderant evidence that her military status was a motivating or substantial factor in the agency’s decision to terminate her during probation, the administrative judge considered the appellant’s statement, filed under penalty of perjury, that: (1) she had s everal conversations with a coworker who was also her team leader in which she expressed an anti -military sentiment4; (2) the coworker told the appellant that she had spoken with the appellant’s second -level supervisor, also the author of the appellant’s t ermination letter, about her conversations with the appellant and concerns about her status as a disabled veteran; and (3) the appellant then spoke with that official about the coworker’s remarks, and he acknowledged the conversation and stated that he bel ieved that the coworker’s concerns were valid. RID at 5 -6; RF, Tab 29 at 4 -5. The administrative judge also considered the agency’s contrary claim that no such conversations ever occurred, as supported by the second -level supervisor’s sworn affidavit, RF, Tab 45 at 4 -5, as well as his and the coworker’s sworn answers to interrogatories, id. at 6 -8, 16 -18; RID at 6-7. The administrative judge then made credibility findings as to each alleged conversation, using the pertinent factors set forth by the Board in Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458 -62 (1987).5 ¶7 When there has been a hearing at which the administrative judge is able to observe the witnesses, including their demeanor, her credibility determinations 4 According to the appellant , the coworker expressed concern that the fact that the appellant was hired as a disabled veteran limited her own promotion potential. RF, Tab 29 at 4. 5 To resolve credibility issues, an administrative judge must identify the factual questions in dispute, summarize the evidence on each disputed question, state which version she believes, and explain in detail why she found the chosen ver sion more credible, considering such factors as: (1) the witness’ s opportunity and capacity to observe the event or a ct in question; (2) the witness’ s character; (3) any prior inconsistent statemen t by the witness; (4) a witness’ s bias, or lack of bias; ( 5) the contradiction of the witness’ s version of events by other evidence or its consistency with other evidence; (6) the inhere nt improbability of the witness’ s version of events; and (7) the witness’ s demeanor. Hillen , 35 M.S.P.R. at 458 -462; RID at 7 -9. 6 are entitled to deference. Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002). That is not the case here, however, because, as noted, the appellant waived her right to a hearing. Remand Order at 7. Nonetheless, the administ rative judge did not abuse her discretion in applying the factors set forth by the Board in Hillen , as appropriate, in resolving the credibility issues that figure prominently in this case. Fitzgerald v. Department of Defense , 85 M.S.P.R. 463 , ¶ 5 (2000); Goode v. Defense Logistics Agency , 45 M.S.P.R. 671, 674 n.2 (1990) (explaining that the principles for resolving credibility issues are properly applied to cases where there is no hearing). Although the administrative judge’s credibility determinations are not e ntitled to deference, the Board must nonetheless review the administrative judge’s findings to determine if she properly applied the law to the facts of the case, 5 C.F.R. § 1201.115 , and properly weighed the evidence to determine if the parties satisfied their burdens of proof. Here, the appellant’s burden was to show that her military service was a substantial or motivating factor in the agency’s decision to terminate her during probat ion. Sheehan v. Department of the Navy , 240 F.3d 1009 , 1013 (Fed. Cir. 2001). ¶8 Regarding the appellant’s claimed conversations with her coworker, the administrative judge found that the appellant’s rendition of the events was inherently more likely because of the substantive detail with which she remembered the conversations, and that she was therefore more credible. RID at 7-8. The admi nistrative judge further found, however, that the appellant’s second -level supervisor’s sworn statement regarding the alleged conversation he had with the coworker was inherently more probable than the appellant’s version of a conversation to which she was not a party, and that therefore the supervisor’s statement was more credible. RID at 8. Finally, as to the alleged conversation between the appellant and the supervisor, the administrative judge found that the appellant’s statements were inherently unli kely, that there was a strong potential for bias in those statements because they were wholly uncorroborated, and that 7 there was evidence that the appellant’s character had been questioned, such that her second -level supervisor was more credible. RID at 8 -9. The administrative judge concluded that only the appellant’s sworn statements supported her claim, and that some portions of those statements were improbable and self -serving, RID at 10, that there was no evidence showing that the coworker improperly influenced the supervisor in his decision to terminate the appellant during probation, that, in his sworn statement and interrogatory responses, he strongly denied having any anti -military sentiment and the appellant produced no contrary evidence, and that 12 years had elapsed between the appellant’s military service and her termination. RID at 10 -11. The administrative judge further found no evidence of inconsistencies between the agency’s proffered reasons for terminating the appellant and any other age ncy action or of disparate treatment. RID at 11. The administrative judge concluded, therefore, that the appellant did not establish that her military service was a substantial or motivating factor in the agency’s decision to terminate her during probati on. Sheehan , 240 F.3d at 1014; RID at 11. ¶9 Although the appellant disagrees with the administrative judge’s credibility determinations which formed the basis for her findings, we discern no reason to reweigh the evidence or substitute our assessment of the record evidence for that of the administrative judge who considered the evidence as a whole, drew appropriate references, and made reasoned conclusions. Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105 -06 (1997). We find, therefore, that the appellant has not shown error in the administrative judge’s finding that the appellant failed to prove by preponderant evidence that her mil itary service was a substantial or motivating factor in the agency’s decision to terminate her during her probationary period.6 To the extent the appellant argues that the administrative 6 The appellant contends on review that her supervisor treated others disparately. PFR File, Tab 1 at 22 -23. Although not considered by the administrative judge, RID at 11, the Board, in its Remand Order, addressed this claim and concluded that it did not 8 judge did not, in reaching her decision, mention all of the evidence of record, PFR File, Tab 1 at 11, 23, her failure to do so does not mean that she did not consider it, 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) . ¶10 The appellant also challenges on review the administrative judge’s alternative finding that, even if the appellant met her burden to show that her military service was a significant or motivating factor in the agency’s decision to terminate her, the agency showed that it would have done so even in the absence of such service. PFR File, Tab 1 at 14. The appellant argues that the administrative judge failed to consid er, evaluate, and explain any of the evidence or argument she presented on this issue. Id.; RF, Tab 50 at 4 -15, Tab 49 at 4-11, Tab 48 at 8 -15. Because we agree with the administrative judge that the appellant failed to meet her burden, we need not consider her challenge to the administrative judge’s findings regarding the agency’s burden because such findings are extraneous t o the disposition of this appeal. Sheehan , 240 F.3d at 1014 . ¶11 On review, the appellant argues generally that the agency lacked a valid basis for terminating her during probation. PFR File, Tab 1 at 15 -21. However, the USERRA statute does not confer juris diction on the Board to address an agency’s underlying personnel action when, as here, the merits of that action are not otherwise appealable to the Board. Wooten v. Department of Veterans Affairs , 102 M.S.P.R. 131 , ¶ 13 (2006). constitute even a nonfrivolous allegation that the appellant was terminated due to her military service . Remand Order, ¶ 12 n.7. Based on that finding, the appellant is collaterally estopped from again raising this claim. Jenkins v. Environmental Protection Agency , 118 M.S.P.R. 161 , ¶ 2, n.2 (2012). The same may be said for the appellant’s contention that the administrative judge failed to consider her claims that the agency discriminated against her based on her disability by failing to reasonably accommodate her, PFR File, Tab 1 at 4, 16, and retaliat ed against her for engaging in equal employment opportunity activity, id. at 11 , and that the agency committed harmful procedural error, id. at 24. The Board addressed these claims but found that it lacks jurisdiction to consider them in a USERRA appeal. Remand Order at 8 -9. 9 ¶12 The appellant refers in her petition for review to “new email.” PFR File, Tab 1 at 18 -19. She has not, however, submitted copies of any such emails, but rather has described them by the dates they were presumably sent, specifically, September 19 and 29, 2014. Id. Both dates are well in advance of March 14, 2016, when the record closed below. RF, Tab 20. In the absence of any showing that t he evidence was unavailable before the record was closed despite the appellant’ s due diligence , we need not consider these emails . Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980). ¶13 Finally, the appellant appears to again raise an allegation of whistleblower retaliation. PFR File, Tab 4 at 13 -14. However, the Board noted in its Remand Order that she had twice earlier attempted to raise the claim that she was terminated in reprisal for protected whistlebl owing, and that both times it had been dismissed for lack of jurisdiction on the ground that the appellant failed to demonstrate that she exhausted her administrative remedies with the Office of Special Counsel (OSC ). Remand Order at 9 n.10; see, e.g. , Gonzalez v. Department of Agriculture , MSPB Docket No. DC -1221 -15-0879 -W-1, Initial Decision at 1, 3 (July 9, 2015). The Board noted at that time that the appellant had not, on review, provided evidence that she exhausted her administrative remedies with OS C, and again reminded her that, if she wished to pursue an individual right of action appeal before the Board, she must first exhaust her administrative remedies with OSC. Remand Order at 9 n.10. Regarding the appellant’s instant claim, we again reiterat e that instruction. 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 7 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. 10 review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide 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 caref ully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 11 If you are interested in securing pro bono represe ntation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 yo u have claimed that 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 disc rimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representati ve receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, nati onal origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.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 12 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the addr ess of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be ad dressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to yo u only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.8 The court of appeals must receive your 8 The original statutory provision that provided for judicial revie w of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on 13 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 Federa l Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 re view of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 14 Contact information for the 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	GONZALEZ_SHAWN_DC_4324_15_0636_B_1_FINAL_ORDER_1973938.pdf	2022-10-31	null	DC-4324	NP
3,973	https://www.mspb.gov/decisions/nonprecedential/KENT_KENNETH_R_DE_0752_17_0171_I_1_FINAL_ORDER_1973181.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD KENNETH R. KENT, Appellant, v. SOCIAL SECURITY ADMINISTRATION, Agency. DOCKET NUMBER DE-0752 -17-0171 -I-1 DATE: October 28, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Kenneth R. Kent , The Woodlands, Texas , pro se. Alexess Rea and Sara Pappas Bellamy , Denver, Colorado, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant , formerly a Social Insurance Specialist at the agency’s Workload Support Unit in Golden, Colorado, has filed a petition for review of the initial decision, which sustained his removal based on charges of absence without leave (AWO L), inappropriate conduct, and failure to follow leave and attendance 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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 instructions .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 decisi on 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 c losed. 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 c onclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review . Except as expressly MODIFIED to clarify the applicable standard to evaluate evidence of an affirmative defense of reprisal for p rotected equal employment opportunity (EEO) activity, and to address the administrative judge’s omission of a report considered by the deciding official in reviewing the penalty of removal , we AFFIRM the initial decision . The administrative judge properly sustained the agency’s charges and found that the agency did not violate the appellant’s due process rights or commit harmful procedural error. ¶2 On petition for review, the appellant renews arguments that he made during the proceedings below, namely, that: (1) the agency improperly charged him with AWOL when he re quested leave without pay for tasks related to his pending 2 The appellant filed his petition for review by facsimile dated February 5, 2018, which the Clerk of the Board received on February 6, 2018. Petition for Review (PFR) File, Tab 9. The appellant’s petition was thus filed several days after the deadline to file a petition for review of February 2, 2018, and he did not submit an explanation for the delay . PFR File, Tabs 8 -9. In light of our conclusion that the merits of the appellant’s petition do not warrant granting the petition for review, however, it is not necessary to make a finding regarding the timeliness of the petition. 3 Board and Equal Employment Opportunity Commission appeals; (2) the agency improperly changed approved leave to AWOL and validated his timesheet ; and (3) the agency did not provide him with the information it relied upon in proposing his removal .3 Petition for Review (PFR) File, Tab 9 at 5-12, 14, 16 -17, 19. Our review of the record reflects that the administrative judge properly considered the appellant’s arguments in finding that the agency proved its charges and did not violate the appellant’s due process rights or commit harmful procedural error , and we disce rn no reason to disturb the administrative judge’s well-reasoned findings. Initial Appeal File (IAF), Tab 35, Initial Decision ( ID) at 3-29, 32 -33; see Clay v. Department of the Army , 123 M.S.P.R. 245 , ¶ 6 (2016) (finding no reason to disturb the administrative judge’s findings when she considered the evidence as a whole and drew appropriate inferences); Broughton v. Department of Hea lth & Human Services , 33 M.S.P.R. 357 , 359 (1987) (same). ¶3 In addition, the appellant newly argues that : (1) the documents he submits with his petition contradict the declarations of agency witnesses that the agency submitted in its closing brief with respect to the time he left work on August 5, 2016, his demeanor during an August 12, 2016 meeting, and his demeanor during an Aug ust 15, 2016 encounter with his first -level supervisor; (2) the agency failed to obtain statements from a supervisor and other “disinterested” witnesses in support of its charges; (3) the agency violated his Weingarten rights4 during an 3 The appellant also filed an appeal of an earlier 30 -day suspension, and has petitioned for review of the initial decision affirming that suspension. Kent v. Social Security Administration , MSPB Docket No. DE -0752 -16-0391 -I-1, Initial Decision (Mar. 21, 2017). On review, the appellant requests t hat the Board join his removal appeal with his previous appeal . PFR File, Tab 1 at 1. Joind er of the two appeals would not expedite the processing of the cases; therefore, the ap pellant’s request is denied. 5 C.F.R. § 1201.36 (b). We have not considered any arguments that the appellant makes in his petition for review of the instant case that concern his 30 -day suspension. 4 The appellant appears to refer to National Labor Relations B oard v. Weingarten, Inc. , 420 U.S. 251 (1975), which held that an employee has a right to union representation during an investigatory interview when the employee reasonably believes that discipline may result. Weingarten , 420 U.S. at 267. Although Weingarten only applies to private 4 August 19, 2016 mee ting; and (4) the events of October 17, 2016 , did not occur as characterized by the agency in the fifth and sixth specification s of the second charge .5 PFR File, Tab 9 at 8, 13 -23. Additionally , he submits a chronology of events that he did not provide below. Id. at 23 -27. The appellant has not alleged that these arguments are based on new and material evidence not previously available, despite his due diligence, thus the Board need not consider them. See Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980) (holding that the Board generally will not consider an argument raised for the first time in a petition for review absent a showing that it is based on new and material evidence not previou sly available despite the party’ s due diligence ). Nevertheless, because several of the appellant’s new arguments also reiterate portions of arguments that he made below, we have considered t he arguments, but we find that the appellant has not demonstrated error in the administrative judge’s findings that would warrant an outcome different from that of the initial decision . See 5 C.F.R. § 1201.115 . We thus affirm the initial decision as modified, as explained below. The appellant failed to prove his affirmative defense of reprisal for protected EEO activity. ¶4 In finding that the appellant did not show that reprisal for prote cted EEO activity was a motivating factor in his removal, the administrative judge applied the evidentiary standards set forth in Savage v. Department of the Army , 122 M.S.P.R. 612 , ¶¶ 42-43, 51 (2015) , overruled in part by Pridgen v. Office of Management & Budget , 2022 MSPB 31 , ¶¶ 23-25; ID at 29-32. In Savage , the Board stated that, when an appellant asserts an affirmativ e defense of discrimination or retaliation, the Bo ard first will inquire whether the appellant has sector employees, Congress has granted Federal employees Weingarten -type rights, as set forth in 5 U.S.C. § 7114 (a)(2). 5 The appellant appended several documents to his petition for review, all of which are in the record below except the docum ents he has labelle d as exhibits 1, 2.3, 2.11, and 2.12, none of which are new and material to the instant case. PFR File, Tab 9 at 29, 33, 40 -41. 5 shown by preponderant evidence that the prohibited consideration was a motivating factor in t he contested personnel action. Savage , 122 M.S.P.R. 612 , ¶ 51. The Board further stated that, in making his initial showing, an appellant may rely on direct evidence or any of the three types of circu mstantial evidence described in Troupe v. May Department Stores Company , 20 F.3d 734 , 736 (7th Cir. 1994) , i.e., pretext, comparator or “convincing mosaic,” e ither alone or in combination. Savage , 122 M.S.P.R. 612 , ¶ 51. ¶5 The Board has since clarified that Savage does not require admin istrative judges to separate “direct” from “indirect” evidence and to proceed as if such evidence were subject to different legal standards, or to require appellants to demonstrate a “convincing mosaic” of discrimination or retaliation. Gardner v. Departm ent of Veterans Affairs , 123 M.S.P.R. 647 , ¶ 30 (2016), clarified by Pridgen v. Office of Management & Budget , 2022 MSPB 31 , ¶¶ 23 -24. Instead, as the Board stated in Savage , the dispositive inquiry is whether the appellant has shown by preponderant evidence t hat the prohibited consideration was a motivating factor in t he contested personnel action. Id.; see Savage , 122 M.S.P.R. 612 , ¶ 51. Here, the administrative judge mentioned the distinction between direct and circumstantial evidence, but there is no indication that he disregarded any evidence because it was not direct or circumstantial . ID at 29 -32. Moreover, the administrative j udge correctly found that the appellant failed to present any evidence supporting his claim of reprisal. ID at 31 -32. Accordingly, the administrative judge properly concluded that the appellant failed to prove by preponderant evidence that reprisal was a motivating factor in his removal .6 6 Because we discern no error with the administrative judge’s motivating factor analysis or conclusion regarding this claim, we need not resolve the issue o f whether the appellant proved retaliation was a “but -for” cause of the agency’s decision . See Pridgen v. Office of Management & Budget , 2022 MSPB 31 , ¶¶ 20 -22, 29 -33. 6 The administrative judge properly found a nexus between the charged misconduct and the efficiency of the service and, despite omitting a report that the deciding official cons idered from his review of the penalty, he properly concluded that the penalty of removal was within tolerable limits of reasonableness. ¶6 On review, the appellant does not challenge the administrative judge’s finding that the agency showed a nexus between the sustained charges and the efficiency of th e service, and we discern no reason to disturb these findings. ID at 33-34; see Clay , 123 M.S.P.R. 245 , ¶ 6. However, the appellan t renews his argument that the deciding official improperly considered a report that the appellant made inappropriate statements to his union representative in sustaining the penalty of removal, and that he did not have an opportunity to respond to this report. PFR File, Tab 9 at 2 -3. Prior to the parties’ filing of close of record submissions, t he admi nistrative judge ruled that the deciding official notified the appellant that he was considering this report and afforded the appe llant an opportunity to respond, but that it was unnecessary for the administrative judge to consider the report in determining whether the penalty of removal was an appropriate penalty. IAF, Tab 32 at 2 -3; ID at 36 n.3. The administrative judge did not explain his reasoning fo r this ruling. ¶7 When , as here, the agency’s charge s are sustained, the Board will review an agency -imposed penalty only to determine if the agency considered all of the relevant factors and exercised management discretion within tolerable limits of reasonableness. Adam v. U.S. Postal Service , 96 M.S.P.R. 492 , ¶ 5 (2004) , aff’d , 137 F. App’x 352 (Fed. Cir. 2005). The Board will modify a penalty only when it finds that the agenc y failed to weigh the relevant factors or tha t the penalty clearly exceeded the bounds of reasonableness. Id. The administrative judge erred in declining to consider the report that the appellant made inappropriate statements to his union representative as part of his review of the deciding official’s choice of penalty, as the deciding official considered the information in sustaining the proposed penalty o f removal. IAF, Tab 7 at 6 -13. 7 ¶8 Moreover, a deciding official may consider uncharged, similar misc onduct in determining a penalty when the agency gave the appellant clear notice that it was relying upon that uncharged misconduct. Thomas v. U.S. Postal Service , 96 M.S.P.R. 179 , ¶ 9 (2004). Here, as described by the administrative judge, the deciding official notified the appellant that he intended to consider the report that the appellant made inappropriate statements in his analysis of the appellant’s potential for rehabilitation and the adequacy of alternate sanctions, given the report’s similarity to two specifications of inappropriate conduct. IAF, Tab 7 at 28-33, Ta b 32 at 2 -3. The deciding official provided the appellant with an opportunity to reply to the report , and the appellant provided a reply denying the allegations regarding what he said. Id. at 21 -26, 29. Neither party submitted the results of the investi gation into what the appellant purportedly said, nor has the appellant submitted any evidence showing that the report was unsubstantiated. ¶9 Rather than decline to consider the report , the administrative judge should have resolved the apparent conflict in the record evidence as to whether the incident set forth in the report occurred and whether the deciding official properly considered the report in sustaining the penalty of removal .7 See Thomas , 96 M.S.P.R. 179 , ¶ 10 (concludin g that the administrative judge erred in finding that the agency’s reliance on uncharged misconduct was improper because there was conflicting evidence regarding the misconduct and he should have resolved the conflict by making a credibility determination). We need not resolve this conf lict, however, because the deciding official stated in a sworn statement , submitted with the agency’s close of record brief, that he would have decided to remove the appellant even in the absence of information regarding the alleged threat directed at the union representative. IAF, Tab 33 at 29. Accordingly, the administrative judge properly concluded that the deciding official weighed the 7 The appellant withdrew his request for a hearing during the proceedings below, and the administrative judge relied upon the written record in issuing an initial decision. IAF, Tabs 21, 24; ID at 1. 8 relevant factors and that the penalty of removal was within tolerable limits of reasonableness.8 ID at 34 -37. NOTI CE OF APPEAL RIGHTS9 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 thi s final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the 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 caref ully follow all filing time limits and requirements. Failure to file 8 Nearly 8 months after filing his petition for review, the appellant filed a motion for leave to file new and material evidence. PFR File, Tab 12. The appellant claimed that, in August 2019, he received information about a “hypothetical” removal action from a prior agency at which he was employed, and that he believes that the prior agency provided this information to the Social Security Administration, which based a 14 -day suspension on this information. Id. at 2-3. Even assuming that this evidence is new, we find that the appellant has not shown that the evidence is material to the outcome of this appeal. Accordingly, we deny the appellant’s motion. 5 C.F.R. § 1201.114 (a)(5). On May 4, 2022, the appellant filed a second motion for leave to submit new evidence, asserting that he had new and material information that was relevant to this case and his other case, Kent v. Social Security Administration , MSPB Docket No. DE-0752 -16- 0391-I-1. PFR File, Tab 16. The appellant asserts that his new evidence demonstrates “a nexus between [the agency’s] charges, and Due Process, Prohibited Personnel Practice, Weingarten violations, Retaliatory Animus, Arbitrary, Capricious, and abuse of Disc retion violations.” Id. at 5. The appellant does not, however, explain with any specificity the nature of the evidence, its need to be submitted, or its relevancy to the material issues in this appeal. Accordingly, we deny the appellant’s motion. 5 C.F.R. § 1201.114 (a)(5). 9 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 9 within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional 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. 10 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, t hen you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 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: 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 ad dressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to yo u only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.10 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 10 The original statutory provision that provided 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. 12 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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	KENT_KENNETH_R_DE_0752_17_0171_I_1_FINAL_ORDER_1973181.pdf	2022-10-28	null	DE-0752	NP
3,974	https://www.mspb.gov/decisions/nonprecedential/CASSIDY_DAVID_K_DC_3443_17_0666_I_1_FINAL_ORDER_1973196.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DAVID K. CASSIDY, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER DC-3443 -17-0666 -I-1 DATE: October 28, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 David K. Cassidy , Lacey, Washington, pro se. Richard L. Schwartz , 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 his pay disparity 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 mater ial fact; the initial decision is based on an 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decis ion were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Boar d’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 The appellant file d the initial appeal alleging that he was paid approximately $13,000 less annually than his younger female subordinate who has less service. Initial Appeal File (IAF), Tab 1 at 3. The appellant alleged this was a personnel action or decision by the agency and that the agency failed to follow merit pay principles. Id. ¶3 In an Order to Show Cause, the administrative judge notified the appellant of his burden of proof to establish Board jurisdiction over an adverse action appeal under chapter 75 . IAF, Tab 3. The appellant did not respond to this order. IAF, Tab 6 , Initial Decision (ID) at 2. Because the appellant failed to raise a nonfrivolous allegation of jurisdiction, the administrative judge determined that he was not entitled to a hearing and dismissed the appe al for lack of jurisdiction. ID at 1. ¶4 The appellant has filed a petition for review of the initial decision, and the agency has responded. Petition for Review (PFR) File, Tabs 1, 4. In his petition for review, the appellant assert s that he did not timely receive the Order to Show 3 Cause or the i nitial decision due to mail dela ys and his deployment to temporary active duty. PFR File, Tab 1 at 1. The a ppellant further asserts that “[t]he Board’s jurisdiction in this case is clearly outlined in 29 U.S.C. § 206 (d)(1). ” Id. Lastly, the appellant lists various scenarios in which the Board may review pay issues, apparently asserting that this establishes Board jurisdiction over his appeal . Id. at 2. DISCUSSION OF ARGUME NTS ON REVIEW ¶5 The Board’s jurisdiction is limited to areas specifically granted by law, rule, or regulation . Todd v. Merit Systems Protection Board , 55 F.3d 1574 , 1576 (Fed. Cir. 1995). An appell ant has the burden to establish jurisdiction over his appeal . 5 C.F.R. § 1201.56 (b)(2)(i) (A). ¶6 Although the appellant indicates that he received the administrative judge’s jurisdictiona l order and the initial decision late, we find that his petition for review was timely filed. PFR File , Tab 1 at 1 . Further, b ecause jurisdiction may be raised at any time during Board proceedings, we consider the appellant’s arguments on review, regardless of his failure to respond to the o rder below . Morgan v. Department of the Navy , 28 M.S.P.R. 477 , 478 (1985) ; ID at 2 . ¶7 Nonetheless, we find that the administrative judge properly dismissed the appeal for lack of jurisdiction. A claim under the Equal Pay Act, such as this one, does not fall within the Board’s original or appellate jurisdiction. See 5 C.F.R. §§ 1201. 2-1201. 3 (listing claims over which the Board has jurisdiction). The appellant’s reference to three circumstances in which pay issues may come before the Board, seemingly arguing that this establishes Board jurisdiction over all pay issues, misses the mark. The a ppellant first notes that an Equal Pay Act claim may be raised as an affirmative defense in a mixed case before the Board in which the Board has jurisdiction over an adverse action. PFR File, Tab 1 at 2 (citing 5 U.S.C. §§ 2302 (b)(1)(C) and 7702(a)(1)(B)(ii)). However, the appellant did not allege that he suffered from an adverse action 4 under chapter 75 . IAF, Tab 1 at 3. Adverse action s are limited to removals, suspensions exceeding 14 days, reductions in grade, reductions in pay, and furloughs of 30 days or less. 5 U.S.C. § 7512 (1)-(5). The Board generally lacks jurisdiction over discrimination claims in the absence of an otherwise appealable action. Rosario -Fabregas v. Department of Army , 122 M.S.P. R. 468 , ¶ 20 (2015) , aff’d , 833 F.3d 1342 (Fed. Cir. 2016) . ¶8 The appellant additionally states that pay issues may come before the Board in situations where the Board has ordered corrective action for employees. PFR File, Tab 1 at 2 ( citing Kerr v. Nationa l Endowment for the Arts , 726 F. 2d 730 , 733 (Fed. Cir. 1984)). This situation is not applicable here, however, as there is no such order in this matter. ¶9 Finally, the appellant states that pay issues may come before the Board in whistleblower reprisal cases because “a decision concerning pay” is a “personnel action” as define d by 5 U.S.C. § 2302 (a)(2)(A)(ix) . PFR File, Tab 1 at 2 . This too is not applicable here as the a ppellant has alleged neither that he is a whistleblower nor that the decision concerning his pay was made in response to a protected disclosure. The appellant’s language referencing whistleblower reprisal, which was copied and pasted from the Board’s webs ite verbatim ,2 does not amount to a whistleblowing claim because he does not allege that his pay was the result of whistleblower reprisal. Further, the appellant did not suggest in his initial appeal that he was filing such a claim. In fact, he left blan k the portion of the initial appeal form that sought information as to exhaustion of his Office of Special Counsel administrative remedy. IAF, Tab 1 at 4. Thus, we discern no error in the administrative judge’s lack of specific notice on how to establish jurisdiction over an individual right of action appeal. See Washington v. Department of the Navy , 75 M.S.P.R. 150 , 153 (1997) (finding that an 2 U.S. Merit Systems Protection Board, Merit System Principles , MSP3 Q & A , What is the MSPB’s adjudicatory role in ensuring equal pay is provided for equal work?, https://www.mspb.gov/msp/msp3.htm (last visited Oct. 27 , 2022 ). 5 administrative judge was not required to infer that an appellant was raising a whistleblower reprisal claim when he responded to the question on his initial appeal as to whether he was raising such a claim with the response “N/A”). When an appellant does not allege that the personnel action at issue is in retaliation for whistleblowing, the administrative judge is not required to draw a contrary conclusion based on one off-hand reference to whistleblowing. Id. ¶10 For the foregoing reasons , we deny the appellant’s petition for review and affirm the initial decision finding that the appellant has failed to make a nonfrivolous allegation of Board jurisdiction. NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time li mits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your part icular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. 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, t he Board cannot advise which option is most appropriate in any matter. 6 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney wil l accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such acti on 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. Cour t of Appeals for the Federal Circuit), within 30 calendar days after you 7 receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be 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, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calenda r days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: 8 Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial 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 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 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 9 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals 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	CASSIDY_DAVID_K_DC_3443_17_0666_I_1_FINAL_ORDER_1973196.pdf	2022-10-28	null	DC-3443	NP
3,975	https://www.mspb.gov/decisions/nonprecedential/DANTZLER_EUGENE_F_SF_0752_17_0513_I_1_FINAL_ORDER_1973201.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD EUGENE F. DANTZLER, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER SF-0752 -17-0513 -I-1 DATE: October 28, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Robert Jeffrey , Oakland, California, for the appellant. Sara Adibisedeh , San Francisco, California, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his appeal as untimely filed. On review, the appellant argues that he never received the notice of removal and filed his appeal promptly upon learning of his right to appeal to the Board. Generally, we grant petitions such as th is one 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 th e case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). ¶2 Although the appellant contends for the first time on review that he did not receive the notice of removal, the record contains a certified mail receipt showing that he signed for the January 13, 2016 removal notice on January 16, 2016. Initial Appeal File , Tab 4 at 17. The removal notice contained complete and accurate notice of the appellant’s right to file a Board appeal, including the 30-day filing deadline. Id. at 15 -16. We find, therefore, that the appellant received the removal notice on January 16, 2016, was properly informed of the deadline for filing a Board appeal, and failed to establish good cause for the approximately 17 -month delay. See e.g. , Greenberg v. Department of Justice , 91 M.S.P.R. 42 , ¶ 6 (2002) (finding that a filing delay of over 6 months was significant); 5 C.F.R. § 1201.22 (b)(1), (c). ¶3 After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). 3 NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which 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 t ime limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by 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 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 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 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 applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 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) ot her than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U .S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Cou rt of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6 , 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Mer it Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 3 The 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: Washingto n, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	DANTZLER_EUGENE_F_SF_0752_17_0513_I_1_FINAL_ORDER_1973201.pdf	2022-10-28	null	SF-0752	NP
3,976	https://www.mspb.gov/decisions/nonprecedential/BUTERA_TERESA_ANN_AT_0831_17_0326_I_1_FINAL_ORDER_1973250.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD TERESA ANN BUTERA, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER AT-0831 -17-0326 -I-1 DATE: October 28, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Teresa Ann Butera , Helena, Alabama, 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 her appeal of a final decision of the Office of Personnel Management (OPM) reducing he r retirement annuity as untimely. Generally, we grant petitions such as this one only in the following circumstances: the initial decision 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due d iligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for revie w. Therefore, we DENY the petition for review. Except as expressly MODIFIED to vacate the administrative judge’s finding regar ding the delay between the appellant’s alleged realization of the reduction in her monthly benefit check and the filing of her initial appeal, we AFFIRM the initial decision. ¶2 On petition for review, the appellant repeats her request that the Board allow her to make a deposit for her post -1956 military service in order to avoid the reduction of her retirement annuity by OPM. Petition for Review (PFR) File, Tab 1. She repeats her assertion that she did not receive OPM’s final decision letter informing h er that her annuity would be reduced by eliminating credit for her post -1956 military service. Id.; Initial Appeal File ( IAF), Tab 5 at 7 -8. Although she maintains that she has been unable to update her address with OPM, she confirms that her daughter li ves at the address to which OPM’s final decision letter was sent. PFR File, Tab 1. Finally, the appellant asserts for the first time on review that her daughter “never received this particular piece of mail or she would have given it to [the appellant ],” because her daughter generally called the appellant when she received mail at the address. Id. The appellant has not shown that this argument regarding her daughter is based on new and material evidence not previously available despite her due diligence . See Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980); 5 C.F.R . § 1201.115 (d). 3 ¶3 The appel lant did not request a hearing , and the timeliness issue was decided on th e basis of the written record . IAF, Tab 1 at 2 , Tab 12, Initial Decision ( ID) at 1. The initial decision correctly found that the appeal was untime ly and that the appellant failed to show good cause for her untimeliness. ID at 3 -4. Although the appellant is pro se, a 245 -day2 delay in filing is significant, as the administrative judge correctly pointed out. ID at 4; see Crook v. U.S. Postal Servic e, 108 M.S.P.R. 553 , ¶ 6, aff’d , 301 F. App’x 982 (Fed. Cir. 2008). ¶4 The appellant’s bare assertion that she did not receive OPM’s final decision, while acknowledging that she previously received OPM correspondence through her daughter at the address of record, is unconvincing. IAF, Tab 11 at 1. The Board has held in othe r circumstances that an appellant’s general statement, without more, that her petition for review was lost in the mail is not sufficient to show timeliness. See Robinson v. Office of Personnel Management , 56 M.S.P.R. 325, 327 (noting that the appellant failed to provide any evidence or specifically allege the date on which the petition was allegedly filed) , aff’d , 5 F.3d 1505 (Fed. Cir. 1993) . She failed to provide any explanation regarding the date and circumstances of her receipt of OPM’s decision letter, which she submitted int o the record before OPM’s first submission in the present appeal. IAF, Tab 3. Moreover, as noted by the administrative judge, the address to which OPM mailed the final decision was the same address of record the appellant designated in the present appeal , despite her assertion below that she had not resided at that address since 2005. ID at 3; IAF, Tab 1 at 1, Tab 11 at 1. 2 The administrative judge found that the initial appeal was filed 255 days after the filing deadline. ID at 2. In fact, OPM’s final decision became effective on June 1, 2016. IAF, Tab 5 at 7 -8. The deadline to file an initial appeal was July 1, 2016. 5 C.F.R. § 1201.22 (b)(1). Thus, the appellant’s March 3, 2017 initial appeal was filed 245 days after the filing deadline. This discrepancy is immaterial. The appellant has failed to show that her appeal was timely or that good cause existed for the delay (be it 245 or 255 days). 4 ¶5 The administrative judge found that the appellant failed to establish that she exercised due diligence or ordinary prudence justify ing why, when she alleged that she contacted OPM after noticing the reduction in her annu ity, which became effective June 1, 2016, and was told by OPM that she could file an appeal with the Board, she waited until March 3, 2017, to file the present appeal. ID at 3. We find the appellant’s general statements insufficient to demonstrate that she did not receive OPM’s decision letter prior to the effective date of the annuity reduction , or adequately explain the untimeliness of her appeal . Therefore, we vacate the administrative judge’s finding, “presuming arguendo that the appellant did not receive [OPM’s] letter,” that her explanation that she contacted OPM after noticing the reduction in her monthly check justified “ some delay . . . but not a delay of wel l over half a year. ” Id. (emphasis in original) . ¶6 Accordingly, we deny the petition for review and affirm as modified the initial decision. NOTICE OF APPEAL RIG HTS3 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate 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 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 5 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 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. 6 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you r eceive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later tha n 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 7 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial pet ition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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 review of certain whistleblower claims by any cou rt of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblo wer reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 8 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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	BUTERA_TERESA_ANN_AT_0831_17_0326_I_1_FINAL_ORDER_1973250.pdf	2022-10-28	null	AT-0831	NP
3,977	https://www.mspb.gov/decisions/nonprecedential/ELLINPORT_TAMI_S_NY_1221_17_0033_W_1_FINAL_ORDER_1973273.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD TAMI S. ELLINPORT, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER NY-1221 -17-0033 -W-1 DATE: October 28, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jessica Buchser , Huntington Station, New York, for the appellant. Michael J. Berger , Esquire, Brooklyn, New York, for the agency. Steven A. Snyder , Northport, New York, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her individual right of a ction (IRA) appeal as settled . 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, the appellant ’s petition for review is DISMISSED as untimely filed withou t good cause shown. 5 C.F.R. § 1201.114 (e), (g). BACKGROUND ¶2 The appellant, a WG -1 Housekeeping Aide, timely filed an IRA appeal alleging that she was reassigned to a different unit as a result of her whistleblowing activity concerning allegations of patient abuse by nursing staff. Initial Appeal File (IAF), Tab 1 , Tab 5 at 7. During the pendency of that appeal , the parties reached a settlement agreement, which provided that the appell ant would withdraw her Board appeal in exchange for the agency paying her $5,000 within 60 days of the date of the settlement agreement, reassigning her to a GS -4 Medical Support Assistant position, and providing additional training to nursing staff regard ing patient abuse. IAF, Tab 17 at 4 -6.2 The administrative judge then issued an initial decision dismissing the appellant ’s appeal as settled. IAF, Tab 18, Initial Decision (ID) at 1 -2. Specifically, the administrative judge found that the Board had ju risdiction over the appellant’s appeal, that the settlement agreement was lawful on its face, and that the parties freely entered into the agreement. ID at 2; see Delorme v. Department of the Interior , 124 M.S.P.R. 123, ¶¶ 10, 14 -21 (2017) (noting that t he Board will incorporate a settlement 2 The initial decision dismissing the appellant’s IRA appeal as settled and the compliance initial decision denying the appellant’s petition for enforcement both state that the operative settlement a greement is located in the appeal file at Tab 16. IAF, Tab 18, Initial Decision (ID) at 2; Ellinport v. Department of Veterans Affairs , MSPB Docket No. NY-1221 -17-0033 -C-1, Tab 7, C ompliance Initial Decision at 1 -4. Tab 16 contains two different settleme nt agreements, each with different essential terms, and both of which are unsigned. Compare IAF, Tab 16 at 2 -4, with id. at 5-7. Conversely, Tab 17 contains a settlement agreement that is identical to the latter of the two agreements found in Tab 16 but has a different date, and is signed and dated by both parties. IAF, Tab 17 at 4 -6. Thus, it appears that the administrative judge intended to cite to Tab 17 as the enforceable agreement. Any error in this misstatement was inadvertent and harmless and di d not affec t the outcome of the decision. See Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) (finding that an adjudic atory error that was not prejudicial to a party ’s substantive rights provided no basis for reversal of an initial decision). 3 agreement into the record and enforce its terms if the parties intended that the agreement be enforced by the Board and the agreement is lawful on its face and was freely reache d and understood by the parties). She therefore accepted the agreement into the record for enforcement purposes and dis missed the appeal. ID at 2. ¶3 The appellant subsequently sent a letter dated April 2, 2017 , to the administrative judge , in which she argued that the agency breached the settlement agreement by paying the appellant the agreed -upon $5,000 amount by direct deposit into her bank account instead of by physical check, and stated that she wanted to “rescind” the settlement agreement, which the administrative judge docketed as a petition for enforcement. Ellinport v. Department of Veterans Affairs , MSPB Docket No. NY-1221 -17-0033 -C-1, Com pliance File (CF), Tab 1. By decision dated May 25, 2017, the administrative judge denied the appellant’s petition for enforcement, concluding that nothing in the agreement specified the manner by which the appellant would be paid , that she had not disputed that the agency was otherwise in compliance with the terms of the agreement, and therefore , that the agency had not breached the agreement. CF, Tab 7, Compliance Initial Decision (CID) at 4. As explained in greater detail belo w, the appellant did not file a petition for review of the compliance initial decision, and that decision became final on June 29, 2017. CID at 5. DISCUSSION OF ARGUME NTS ON REVIEW ¶4 On June 29, 2017, the appellant filed a pleading with the administrative judge bearing the docket number of both the initial appeal and the compliance matter. Petition for Review (PFR) File, Tab 1. The field office forwarded the matter to the Office of t he Clerk of the Board (Clerk’s Office) , the Clerk ’s Office contacted the appellant by telephone regarding her submission, and the appellant confirmed that it was her intention that the filing be treated as a petition for review of the administrative judge ’s March 2, 2017 initial decision dismissing her 4 IRA appeal as settled. PFR File, Tab 2 at 1. The Clerk ’s Office documented this conversation as part of a July 13, 2017 notice to the appellant.3 Id. ¶5 In the July 13 notice, the Clerk ’s Office observed that the appellant ’s petition, which was postmarked June 29, 2017, was untimely filed, and instructed the appellant to file a motion requesting that the Board accept her petition as timely, or as untimely filed with good cause for the delay. Id. at 2. In r esponse, the appellant submitted a narrative reply as well as U.S. Postal Service tracking information showing that the delivery of a document was unsuccessfully attempted at the Board’s New York Field Office on Apr il 5, 2017. PFR File, Tab 3 at 1-4. How ever, the document the appellant references in her motion is the letter she sent to the administrative judge dated April 2, 2017, which the administrative judge accepted and fully adjudicated as a petition for enforcement. CF, Tab 1 at 3-4; CID. ¶6 The Board ’s regulations provide that a petition for review must be filed within 35 days after the date of issuance of the initial decision or, if the party shows she received the initial decision more than 5 days after it was issued, within 30 days of her rece ipt of the decision . 5 C.F.R. § 1201.114 (e). The Board will waive the filing deadline for a petition for review only upon a showing of good cause for the untimely filing. Palermo v. D epartment of the Navy , 120 M.S.P.R. 694 , ¶ 4 (2014); 5 C.F.R. § 1201.114 (g). The party who submits an untimely petition for review has the burden of establishing good cause for the untimely filing by showing that she exercised due diligence or ordinary prudence under the partic ular circumstances of the case. Paler mo, 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 her excuse and the party ’s showing of due diligence, whether she is proceeding pro se, and whether she has presented 3 The notice informed the agency that it could respond to the appellant’s submission. PFR File, Tab 2 at 1. The agency has filed a response. PFR File, Tab 4. The appellant has not complained that the Clerk ’s Office mischaracterized her intentions in the notice. 5 evidence of the existence of circumstances beyond her control that affected her ability to comply with the time limits or of unavoidable casualty or misfortune that similarly shows a causal relationship to her inability to timely file her petition. Id. ¶7 The initial decision dismissing the appellant’s IRA appeal as settled stated that the initial decision would become final on April 6, 2017, unless a petition for review was filed by that date. ID at 3. The initial decision also stated that if the initial decision was received more than 5 days after the date of issuance, a petition for review could be filed within 30 days after the date of receipt of the initial decision. Id. The initial decision also set forth the Office of the Clerk of the Board’s mail ing address for filing a petition for review and that a petition for review could be filed through the Board’s e -Appeal system and by facsimile transmittal. Id. at 4. Despite these clear instructions, the appellant did not file her petition for review un til June 29, 2 017. PFR File, Tab 1. ¶8 As noted, the appellant filed her petition for review more than 2 months after the filing deadline. The Board has regularly held that a delay of over 2 months is not minimal , even when the appellant is proceeding pro se. See, e.g. , Winfrey v. National Archives & Records Administration , 88 M.S.P.R. 403 , ¶ 6 (2001) ( finding that a 48 -day delay i n filing a petition for review is not minimal and does not provide a basis for waiv ing the filing deadline); Gaines v. U.S. Postal Service , 96 M.S.P.R. 504 , ¶ 7 (2004) ( stating that a delay of 37 days is not minimal). Additionally, i n her motion to accept the untimely filing, the appellant did not offer any explanation for the more than 2 -month delay. PFR File, Tab 3 at 1-2. ¶9 Accordingly, we dismiss the petition for review as untimely filed without good cause shown for the delay . This is the final decision of the Merit Systems Protection Board regarding the timeliness of the petition for review. The initial decision remains the final decision of the Board regarding the dismissal of the appellant’s IRA appeal as settled . 6 NOTICE OF APPEAL RIG HTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your sit uation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your cl aims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review belo w to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 7 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, t hen you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and 8 to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at the ir respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your rep resentative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EE OC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C . § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 9 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2 302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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 Circ uit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 201 8, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 10 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	ELLINPORT_TAMI_S_NY_1221_17_0033_W_1_FINAL_ORDER_1973273.pdf	2022-10-28	null	NY-1221	NP
3,978	https://www.mspb.gov/decisions/nonprecedential/DAVIS_KATHY_A_DE_3443_17_0282_I_1_FINAL_ORDER_1973280.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD KATHY A. DAVIS, Appellant, v. DEPARTMENT OF COMMER CE, Agency. DOCKET NUMBER DE-3443 -17-0282 -I-1 DATE: October 28, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Kathy A. Davis , Albuquerque, New Mexico, pro se. 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 revie w of the initial decision, wh ich dismissed her appea l—challenging the agency’s actions placing her on administrative leave and reducing her work hour s without reducing her grade or pay—for lack of jurisdiction . On petition f or review, the appellant raises the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 following arguments: the agency has used the administrative leave process to prohibit her from appealing an ad verse action ; her placement on administrative leave constituted a de facto suspension ; she submitted a pleading claiming intolerable working conditions that should have been docketed as a separate appeal and addressed by the administrative judge ; the administrative judge failed to consider how placement on administrative leave has a unique effect on permanent, part -time employees such as herself ; the then -pending Follow the Rules Act of 2017 dictates that the Board has a broader auth ority to hear such matters; the agency has wrongfully limited her to a maximum of 2 hours per pay period, an action which is contrary to the intent of agency policy of maintaining a salary fo r at least 2 hours per pay period to retain employees when work is available; the agency has denied her proper compensation for work that she allegedly completed while improperly providing administrative leave for time that she has not worked; and the agen cy failed to prove that the charge that she falsified data was true or represented a significant threat and she properly and timely defended against this charge. Petition for Review File, Tab 3 at 3-9. ¶2 Generally, we grant petitions such as this one only i n the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the a dministrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. 3 Therefore, we DENY the petition for review and AFFIRM th e initial decision, which is now the Board’s final decision.2 5 C.F.R. § 1201.113 (b). NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the 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. 2 After the close of the record on review, the appellant filed a motion for leave to submit an additional pleading in which she alleges that the agency engaged in “illegal actions” that had a “sub stantial effect” on the outcome of her appeal. Petition for Review File, Tab 7. The Board generally will not grant a petition for review based on new evidence absent a showing that it is of sufficient weight to warrant an outcome different from that of the initial decision. Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980). The appellant’s bare allegation that the agency engaged in some unspecified misconduct fall s short of this standard. 5 C.F.R. § 1201.114 (a)(5), (k). Accordingly, we deny her motion. 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 (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 Additional information about the U.S. Court of Appeals for the Federal Circuit 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 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 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 . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 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: 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 personne l practice described in section 2302(b) ot her than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 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 Additional information about the U.S. Co urt of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Me rit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	DAVIS_KATHY_A_DE_3443_17_0282_I_1_FINAL_ORDER_1973280.pdf	2022-10-28	null	DE-3443	NP
3,979	https://www.mspb.gov/decisions/nonprecedential/DAVIS_KATHY_A_DE_1221_17_0360_W_1_FINAL_ORDER_1973286.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD KATHY A. DAVIS, Appellant, v. DEPARTMENT OF COMMER CE, Agency. DOCKET NUMBER DE-1221 -17-0360 -W-1 DATE: October 28, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Kathy A. Davis , Albuquerque, New Mexico, pro se. 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 revie w of the initial decision, which dismissed her appeal challenging the agency’s investigation for lack of jurisdiction. The administrative judge found that, to the extent the appeal could be construed as an individual right of action (IRA) appeal, the appellant failed to 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 exhaust her remedy before the Offi ce of Special Counsel (OSC) and noted that, even if she could prove exhaustion, she failed to nonfrivolously allege that the agency took or failed to take a personnel action against her, as defined by 5 U.S.C. § 2302 (a). Initial Appeal File, Tab 9, Initial Decision at 3 -9. ¶2 On petition f or review, the appellant argues that the administrative judge should have construed her claim as an asser tion that OSC committed harmful procedural error and that the administrative judge did not provide her sufficient time to present her claim in the context of an IRA appeal once it was construed as such . Petition for Review (PFR) File, Tab 1 at 4. The app ellant also argues that she did not receive a reasonable accommodation. Id. Further, she alleges that OSC and the Board improperly failed to seek furt her clarification of her claims, which she states constituted allegations of whistleblower reprisal. Id. at 4-5. In this regard, she asserts that she provided evidence, in the form of a false report, which demonstrates that the agency retaliated against her for whistleblowing and attempted to undermine her equal employment opportunity complaint . Id. at 5. Additionall y, she states that new and material evidence has arisen which demonstrates that agency officials admitted to its Office of Civil Rights that they took negative actions against her. Id. at 5-6. ¶3 Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and materia l evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). 3 ¶4 The appellan t asserts that new and material evidence has arisen which demonstrates that agency officials admitted to taking negative actions against her , although she does not specify the nature of these actions or argue that they constituted personnel actions . PFR File, Tab 1 at 5 -6. The Board generally will not consider evidence submitted for the first time on review absent a showing that the documents and the information contained in the documents were unavailable before the record closed below despite due diligence and the evidence contained therein is of sufficient weight to warrant an outcome different from that of the initial decision. See Cleaton v. Department of Justice , 122 M.S.P.R. 296 , ¶ 7 (2015), aff’d , 839 F.3d 1126 (Fed. Cir. 2016). Even if this evidence was new, the Board would not consider it because it is not material to the dispositive issue of whether the appellant alleged before OSC that she was subjected to a covered personnel action under 5 U.S.C. §2302 (a). ¶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, whic h 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). 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 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise w hich option is most appropriate in any matter. 4 statement of how courts 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 5 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and 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 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 6 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited 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. 7 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appea ls for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’ s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Cir cuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 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	DAVIS_KATHY_A_DE_1221_17_0360_W_1_FINAL_ORDER_1973286.pdf	2022-10-28	null	DE-1221	NP
3,980	https://www.mspb.gov/decisions/nonprecedential/GILBERT_TERESA_DC_0752_16_0479_I_1_FINAL_ORDER_1973374.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD TERESA GILBERT, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER DC-0752 -16-0479 -I-1 DATE: October 28, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Kevin L. Owen , Esquire, Silver Spring, Maryland, for the appellant. Michael J. McHugh and Paul L. Lee , Fort Bragg, North Carolina, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her involuntary retirement appeal for lack of jurisdiction . Generally, we grant petitions such as this one only when: the initial decision contains erroneous findings of material fact; the initial decision is bas ed on an erroneous 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the 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 establish ed any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to VACATE the administrative judge’s analysis concerning the validity of the settlement agreement and the v oluntariness of the appellant’s retirement , we AFFIRM the initial decision . BACKGROUND ¶2 The appellant filed a Board appeal, which the parties settled. Gilbert v. Department of the Army , MSPB Docket No. DC-0752 -15-0568 -I-1, Initial Decision (0568 ID) at 1 -2. After determining that the settlement agreement was voluntarily entered into, understood by the parties, and lawful on its face, the administrative judge dismissed the appeal as settled. Id. The parties expressly agreed not to enter the settlement agr eement into the record for enforcement purposes.2 Initial Appeal File ( IAF), Tab 6 at 13, 15 . The initial decision became final after neither party filed a petition for review. 0568 ID at 3. 2 In the prior appeal, the administrative judge erroneously stated that she was entering the settlement agreement into the record, contrary to the intent of the parties. 0568 ID at 1-2; Initial Appeal File ( IAF), Tab 6 at 13, 15 . In the instant appeal, however, she correctly noted this error and , consistent with th e parties’ intentions , found that the agreement was not to be entered into the record for enforcement purposes . IAF, Tab 9 at 1; IAF, Tab 14, Initial Decision at 1-2; see Walker -King v. Department of Veterans Affairs , 119 M.S.P.R. 414, ¶¶ 9-10 (2013 ) (finding that because the settlement agreement is a contract it is to be interpreted consistent with the i ntent of the parties). 3 ¶3 In relevant part, the agency agreed to consider the appellant’ s request to retire pursuant to a Voluntary Early Retirement Authority or Voluntary Separation Incentive Payment Authority and to pay her two lump sum payments and attorney fees . IAF, Tab 6 at 13 -14. After the appellant allegedly failed to receive any pa yments, she filed a Board appeal claiming that the agency’s promise to pay was misleading and that she retired in detrimental reliance on this promise . IAF, Tab 1 at 6 , Tab 10 at 6 -7. She filed an additional pleading , alleging that the agency’s failure t o adjust her leave and to provide her with a clean record, as promised, similarly rendered her retirement involuntary. IAF, Tab 12 at 5 -6. She contended that her appeal was timely filed. IAF, Tab 8 at 5-6. ¶4 After the appellant clarified her intent to file an involuntary retirement claim, the administrative judge notified the appellant of her jurisdictional burden and provided the parties an opportunity to respond. IAF, Tab 1 at 2, Tabs 2 -3, 9. Both parties responded. IAF, Tabs 10 -11. The administrat ive judge then dismissed the appeal for lack of ju risdiction, without holding the requested hearing. IAF, Tab 1 at 2, Tab 14, Initial Decision (ID) at 1, 8. She found that because the appellant was raising noncompliance claims, as opposed to challenging the validity of the settlement agreement, her allegations were more appropriate for a petition for enforcement . ID at 4-5. She then analyzed the appellant’ s allegations of agency noncompliance with the lump sum payment provision as an involuntary retirem ent claim. ID at 5-8. She found that the appellant failed to raise a nonfrivolous allegation of Board jurisdiction over that claim because she did not demonstrate that the a gency’s actions rendered the terms of the agreement misleading. ID at 6 -7. In m aking these findings, the administrative judge did not consider the appellant’s final response to the jurisdictional order because she determined that it was filed after the record closed and the agency did not submit any new evidence or make any new argum ents warranting further reply . ID at 4. 4 ¶5 The appellant has filed a petition for review of the initial decision. Petition for Review (PFR) File, Tab 1. The agency has filed a response , to which the appellant has replied . PFR File, Tab s 4-5. DISCUSSION OF ARGUMENTS ON REVIEW ¶6 On review, the appellant alleges that the administrative judge erred in adjudicating her involuntary retirement appeal as a petition for enforcement. PFR File, Tab 1 at 5 -6. She also disputes the administrative judge’s finding tha t she failed to nonfrivolously allege Board jurisdiction over her involuntary retirement claim . Id. at 6-10. She further alleges that the administrative judge improperly excluded her additional jurisdictional response from consideration, as it was timely su bmitted before the close of the record. PF R File, Tab 1 at 4, 8, Tab 5 at 4-5. ¶7 The record reflects that t he appellant, a registered e -filer, submitted her additional response to the Board’s e -Appeal repository on the day the record closed . IAF, Tab 1 at 2, Tab 9 at 4, Tabs 11 -12. The date of filing by e -file is the date of electronic submission. 5 C.F.R. §§ 1201.4 (l), 1201.14(m)(1). Thus, we find that the appellant’s response was time ly filed and consider it on review. However, we find that the appellant’s allegations do not provide a basis for finding Board jurisdiction over her retirement . 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 does not provide a basis for reversal of an initial decision). ¶8 We disce rn no error with the administrative judge’s finding that to the extent that the appellant’s allegations may constitute a petition for enforcement, the Board lacks jurisdiction over such an appeal because the settlement agreement 5 was not entered into the re cord for enforcement purposes .3 ID at 5; Barker v. Department of Agriculture , 100 M.S.P.R. 695 , ¶ 6 (2006). ¶9 The appellant reargues o n review that she intended to file an involuntary retirement appeal, not a petition fo r enforcement. IAF, Tab 1 at 6, Tab 3 at 4; PFR File Tab 1 at 5. The Board has jurisdiction over a retirement appeal if the appellant shows by preponderant evidence tha t the retirement was involuntary and therefore tantamount to a removal . Freeborn v. Department of Justice , 119 M.S.P.R. 290 , ¶ 9 (2013) . However, an appellant who has retired pursuant to a settlement agreement cannot prevail on her involuntary retirement claims without first convincing the Board that the agreement and the initial decision finding it valid should be set aside. Mahon ey v. Department of Labor , 56 M.S.P.R. 69, 72 (1992). Therefore, c ontrary to the administrative judge’s determination, we find that , by alleging that the agency’s misleading statements about the settlement agreement ’s terms induced her into retiri ng, the appellant is challenging the validity of the settlement agreement. ID at 5 . ¶10 The appellant may challenge the validity of the settleme nt agreement, regardless of whether it has been entered into the record for enforcement purposes . Barker , 100 M.S.P.R. 695 , ¶ 4. However, the administrative judge lacked the authority to reopen the settlement agreement once the initial decision was issued. Mahoney , 56 M.S.P.R. 69, 73 n.2 ; see Carroll v. Office of Personnel Management , 114 M.S.P.R. 310 , ¶ 9 (2010) (finding that the authority to reopen or reinstate appeals in which there has been a final Board decision is reserved for the Board ). Thus, any attack on the validity of a settlement agreement must be 3 The Board lacks enforcement authority over the settlement agreement because the parties agreed not to enter it into the record for enforcement purposes and not, as the appellant contends, because the Board made no prior jurisdictio nal finding concerning the underlying action that was the subject of the appeal. PFR File, Tab 1 at 6; see Delorme v. Department of the Interior , 124 M.S.P.R. 123 , ¶¶ 16, 21 (2017) (finding that the Board retains enforcement authority over settlement agreements entered into the record for that purpose, independent of a prior finding of jurisdiction over the underlying action). 6 made in the form of a petition for review of the initial decision that dismissed the case as settled. Weldon v. Department of Veterans Affairs , 119 M.S.P.R. 478 , ¶ 5 (2013). Because the appellant retired purs uant to a settlement agreement in the course of her prior Board appeal, she may not collaterally attack the validity of the agreement in this involuntary retirement appeal filed at the regional office level. Mahoney , 56 M.S.P.R. at 72. ¶11 Accordingly, we vacate those portion s of the initial decision addressing the validity of the settlement agreement and the voluntariness of the appellant’s retirement . We affirm , as modified, the initial decision dismissing the appellant’s involuntary retirement appeal for l ack of jurisdiction . To the extent that the appellant is challenging the validity of the settlement agreement, she may file a separate petition for review of the initial decision issued in Gilbert v. Department of the Army , MSPB Docket No. DC-0752 -15-0568 -I-1. We note, however, that such petition for review would likely be untimely and require explanation for the delay in filing. 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 n ature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appe al 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 j urisdiction. If you wish to seek review of 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 7 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 t he dismissal of your case by your chosen forum. Please read 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. C ourt of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for M erit Systems Protection Board appellants before the Federal Circuit. The 8 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involvi ng a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this d ecision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involv es a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file 9 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request f or review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice descr ibed in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 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, permanentl y allows appellants to file petitions for judicial review of MSPB 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 Rev iew Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 10 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional in formation about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 informatio n for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	GILBERT_TERESA_DC_0752_16_0479_I_1_FINAL_ORDER_1973374.pdf	2022-10-28	null	DC-0752	NP
3,981	https://www.mspb.gov/decisions/nonprecedential/KENT_KENNETH_R_DE_0752_16_0391_I_1_FINAL_ORDER_1972944.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD KENNETH R. KENT, Appellant, v. SOCIAL SECURITY ADMINISTRATION, Agency. DOCKET NUMBER DE-0752 -16-0391 -I-1 DATE: October 27, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Kenneth R. Kent , The Woodlands, Texas, pro se. Chad M. Troop and Sara Pappas Bellamy , Denver, Colorado, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initia l decision, which sustained the agency’s action suspending him for 30 days. 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 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 contains erroneous findings of material fact; the initial de cision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not ava ilable when the record closed. Title 5 of the Code of Federal Regulati ons, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and the appellant’s motion s to submit additional evidence . Except as expressly MODIFIED to: (1) clarify t he applicable standards to prove a charge of failure to follow instructions; (2) address the appellant’s affirmative defense claim of harmful procedural error; and (3) refine the analysis of the appellant’s claim of reprisal for engaging in protected equal employment opportunity (EEO) activity, we AFFIRM the initial decision. BACKGROUND ¶2 The appellant, formerly a Social Insurance Specialist at the agency’s Workload Support Unit in Golden, Colorado, timely appealed the agency’s decision suspending him for 3 0 days for inappropriate conduct (three specifications) and failure to follow instructions (one specification).2 Initial Appeal File (IAF), Tab 1, Tab 5 at 6. In support of the charge of inappropriate conduct, the agency relied upon specifications descri bing the appellant’s behavior during meetings with his supervisors on December 28, 2015, January 25, 2016, 2 The agency subsequently removed the appellant from his position, he appealed to the Board, and an administrative judge affirmed the removal action. Kent v. Social Security Administration , MSPB Docket No. DE-0752 -17-0171 -I-1, Initial Decision (Sept. 29, 2017). The appellant’s petition for review i n that appeal is pending. 3 and January 26, 2016; and the charge of failure to follow instructions involved the appellan t’s failure to follow his first -level supervisor’s instru ction to provide the status of claims assigned to him. IAF, Tab 5 at 30 -31. Following a hearing, the administrative judge issued an initial decision sustaining the 30 -day suspension. IAF, Tab 54, Initial Decision (ID). Specifically, he found that the agency had proven its cha rges and that the appellant had not proven his affirmative defenses of reprisal for protected EEO activity, due process violations, and stale (or untimely) charges. ID at 3-20. The administrative judge further found that the agenc y established a nexus between the charged conduct and the efficiency of the service, and that the penalty fell within the tolerable limits of reasonableness. ID at 20-24. ¶3 The appellant has timely filed a petition for review in which he challenges the ad ministrative judge’s rulings on appeal and findings in the initial decision. Petition for Review (PFR) File, Tab 1. The agency has filed an opposition to the petition. PFR File, Tab 3. The appellant also has filed a motion to submit additional evidence . PFR File, Tab 4. DISCUSSION OF ARGUME NTS ON REVIEW The appellant ’s motion t o submit additional evidence is denied. ¶4 The appellant on review filed a motion to submit additional evidence. In support of this motion, he alleges that the agency “manipula ted” audio recordings admitted into evidence at the hearing and that his audio recordings are the original, unedited versions of the recordings already entered into evidence. PFR File, Tab 1 at 1-2, Tab 4. The record reflects that the appellant filed thr ee audio recordings of meetings with several of his supervisors as part of his prehearing submissions, two of which recorded meetings on December 28, 2015, and one of which recorded a meeting on January 25, 2016. IAF, Tab 23. The agency also submitted th ree recordings as part of its prehearing submissions, labeled as Agency Exhibits 1-3. IAF, Tab 35 at 10, Tab 42. During the hearing, the agency 4 played back in its entirety the recording identified as Agency Exhibit 2 and the first 16 minutes of the recor ding identified as Agency Exhibit 3. IAF, Tab 42, Hearing Recording (HR) (testimony of the proposing official and the first -level supervisor). The proposing official identified Agency Exhibit 2 as an accurate recording of one of her December 28, 2015 mee tings with the appellant, which formed the basis of the first specification of the first charge of inappropriate conduct, and the appellant’s first -level supervisor identified Agency Exhibit 3 as an accurate recording of his January 25, 2016 meeting with t he appellant, which formed the basis of the second specification of the first charge. HR (testimony of the proposing official and the first -level supervisor); IAF, Tab 4 at 30. The appellant objected to the agency playing excerpts from the recordings, ra ther than playing the recordings in their entirety, and the administrative judge overruled his objection but nevertheless admitted the recordings in their entirety into the record. HR (statement of the appellant). The appellant did not object below to the authenticity of the recordings, and his failure to lodge such an objection below precludes him from doing so on review. See McCarthy v. International Boundar y & Water Commission , 116 M.S.P.R. 594 , ¶ 25 (2011) (holding that the appellant’s failure to timely object to rulings during the hearing precluded him from doing so on petition for review), aff’d , 497 F. App’x 4 (Fed. Cir. 2012). ¶5 The appellant, though, failed to show that the recordings he seeks to submit on review constitute new and material evidence that was unavailable before the record closed. See Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980 ) (finding that the Board generally will not consider an argument raised for the first time on review absent a showing that it is based on new and material evidence not previously available despite the party ’s due diligence ). In any event, after reviewing Agency Exhibits 1-3, we have determined that they appear to be identical to the recordings submitted below by the appellant; there is no evidence that the agency changed the recordings he provided or that they are otherwise inauthentic. Moreover, the appellant’s specific arguments about the 5 veracity of the recordings actually are an attack on the credibility of the witnesses, a n issue that we fully address below. Accordingly, the appellant’s motion t o submit additional evidence is denied.3 The administrative judge properly sustained the charges of inappropriat e conduct and failure to follow instructions . ¶6 On petition for rev iew, the appellant argues that the agency did not produce sufficient evidence to substantiate the charges and he disputes the administrative judge’s credibility determination s. PFR File, Tab 1 at 2-4. We disagree. ¶7 The initial decision reflects that the administrative judge thoroughly considered the evidence as a whole and made detailed credibility findings that considered the pertinent factors set forth in Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458 (1987).4 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 testi fying at a hearing. Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002). The administrative judge found that the appellant’s supervisors testified consistently with each other when they stated that the appellant engaged in the charged misconduct, and that their testimony was corroborated by the documentary evidence and the audio recordings in the record.5 ID at 3-15. The admin istrative judge also found that, 3 On May 4, 2022, the appellant filed a second motion for leave to submit new evidence, asserting that he had new and material information that was relevant to this case and his other pending case, Kent v. Social Security Administration , MSPB Docket No. DE-0752 -17-0171 -I-1. Petition for Review (PFR) File, Tab 11. The appellant asserts that his new evidence demonstrates “a nexus between [the age ncy’s] charges, and Due Process, Prohibited Personnel Practice, Weingarten violations, Retaliatory Animus, Arbitrary, Capricious, and abuse of Discretion violations.” Id. at 5. The appellant does not, however, explain with any specificity the nature of t he evidence, its need to be submitted, or its relevancy to the material issues in this appeal. Accordingly, we deny the appellant’s motion. 5 C.F.R. § 1201.114 (a)(5). 4 In Hillen , the Board set forth factors that an administrative judge must consider when trying to resolve credibility issues. Hillen , 35 M.S.P.R. at 458. 5 As to the third specification of the first charge, the administrative judge erroneously stated that the first -level supervisor’s and proposing official’s testimony “is consistent 6 while the appellant generally denied the charge s, he did not dispute most of the facts underlyi ng the first charge, and he did not t estify as credibly as his first-level supervisor did regarding the facts underlying the sec ond charge. Id. We discern no reason to disturb the administrative judge’s findings, as the record reflects that he considered the evidence as a whole, drew appropriate inferences from the evidence, and made reasoned conclusions on the issue of credibili ty. Id.; see Clay v. Department of the Army , 123 M.S.P.R. 245 , ¶ 6 (2016) (finding no reason to disturb the administrative judge’s findings whe n she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions on the issue of credibility); Broughton v. Department of Health & Human Services , 33 M.S.P.R. 357 , 359 (1987) (same). ¶8 However, we modify the initial decision to reflect the proper standard to prove a charge of failure to follow instructions under the circumstances of this case. In the order and summary of the prehearing conference and in the initial decision, the administrative judge stated that the agency, as part of its burden of proof on the second charge, was required to establish that the appellant’s failure to follow instructions endangered the safety of persons or property.6 ID at 12; IAF, Tab 45 at 6. This was erroneous. To prove a charge of failure to follow instructions in this case, the agency only needed to establish that the appellant: (1) was given proper instructions; and (2) failed to follow the instructions, without regard to whether the failure was intentional or unintentional. Powell v. U.S. Postal Service , 122 M.S.P.R. 60 , ¶ 5 (2014). The administrative judge’s with the recording of the meeting,” as no audio recording of the meeting described in the specification was admitted into eviden ce. ID at 11. However, this finding did not prejudice the appellant, as the administrative judge properly found the supervisors’ testimony credible and consistent with each other and the documentary evidence. Id. 6 The administrative judge issued an Erratum following the order and summary, noting that the agen cy objected to this labeling of the charge. The administrative judge corrected the label of the charge, indicating that the extraneous language was “an artifact from an unrelated appeal.” Nonetheless, this improper label re -emerged in the initial decisio n. 7 inclusion of an additional requirement appears to have been an inadvertent error, which did not materially alter his correct conclusion that this charge should be sustained. IAF, Tab 47 at 1. ¶9 Accordingly, we affirm the administrative judge’s fin ding that the agency proved its charges. The appellant failed to show that t he administrative judg e erred by excluding his witnesses or by sanctioning him for failing to comply with an order to produce discovery. ¶10 On review, the appellant argues that the administrative judge erred by excluding his requested witnesses and by sanctioning him for failing to comply with an order to produce discovery. PFR File, Tab 1 at 2-3. We disagree. We find th at the administrative judge did not abuse his discretion in so ruling. Despite being provided several opportunities to do so, the appellant did not identify t he substance and relevance of his proposed witnesses’ testimony. IAF, Tab 21, Tab 45 at 11-12, Tab 48 at 3; see 5 C.F.R. § 1201.41 (b)(10) (an administrative judge is authorized to “[o]rd er the production of evidence and the appearance of witnesses whose testimony would be relevant, material, and nonrepetitious”). Additionally, the record supports the administrative judge’s finding that, despite several warnings, the appellant failed to c omply with the administrative judge’s order to produce responses to specific agency discovery requests. IAF, Tab 19, Tab 22 at 2, Tab 33 at 1-2. Consequently, we find that it was within the administrative judge’s discretion to impose sanctions limiting t he appellant’s introduction of evidence related to his affirmative defenses. See Smets v. Department of the Navy , 117 M.S.P.R. 164 , ¶ 11 (2011) (stating that imposing sanctions is a matter within the administrative judge’s sound discretion and, absent a showing that such discretion has been abused, the decision will not be found to constitute reversible error), aff’d per curiam , 498 F. App’x 1 (Fed. Cir. 2012). 8 ¶11 The appellant also argues that the agency failed to call him to testify at the hearing and that the administrative judge failed to ask him questions during the hearing. PFR File, Tab 1 at 2. Our review of the record reflects that the appellant did testify at the hearing. In fact, he was approved as a joint witness for both parties. IAF, Tab 45 at 11 & n.5. Because the appellant testified on his own behalf, there was no need for the agency to also call him as a witness; tha t would have been duplicative. And, although the appellant asserts that the administrative judge did not ask him questions at the hearing, an administrative judge has the option of asking a wi tness questions, but he is not required to do so. The record also reflects that the appellant was permitted to cross -examine agency witnesses at length during the hearing, thereby all owing him to defend against the charges. ¶12 The appellant argues, moreover, that —in finding that the appellant did not deny the charge s—the administrative judge erred by failing to consider the appellant’s deposition testimony in which he denied the charges. The administrative judge, when declaring in the initial decision tha t the appellant did not deny the charges, was referring to the appellant’s testimony at the Board’s hearing, and not at the deposition. ID at 6, 9, 11 (“[t]he appellant te stified at the hearing, but did not specifically address the factual allegations supporting” the charges). The admin istrative judge most likely d id not refer to the appellant’s deposition testimony because neither party introduced this deposition testimony into the record. HR (testimony of the appellant). However, the administrative judge, as to the first charge, pointed out that the appellant ge nerally denied the charged misconduct in his written reply to the notice of proposed suspension, yet he found that the appellant did not otherwise contest the agency’s version of facts or assert a different course of action. ID at 6, 9, 11. Likewise, the administrative judge, as to the second charge, highlighted that the appellant testified at the hearing that he provided an email response to the supervisory instruction, thereby challenging the agency’s claim that he did not follow a supervisory instructi on, but the administrative judge in dicated that the appellant “did not state on which 9 date he provided” this response. ID at 14. The administrative judge also quoted an unsworn statement the appellant provided to contest the second charge, but the admini strative judge found the agency’s contrary evidence on this charg e to be more credible. Id. We see no reason to disturb these findings. As a result, we find that the administrative judg e did not abuse his discretion and acted appropriately by fully deve loping the record, conducting a fair hearing, and ensuring an impartial and just adjudication of this matter. See 5 C.F.R. § 1201.41 . The appellant has not demonstrated that the admini strative judge abused his discretion in making rulings on the appellant’s affirmative defenses. ¶13 On review, the appellant challenges the administrative judge’s prehearing rulings that identified the issues to be adjudicated. PFR File, Tab 1 at 1-4. An administrative judge has wide discretion to control the proceedings, including holding prehearing conferences for the simplification of issues and ruling on exhibits and witnesses. Doe v. Department of Justice , 118 M.S.P.R. 434 , ¶ 38 (2012); 5 C.F.R. § 1201.41 . The Board will not overturn an administrative judge’s rulings absent a showing of an abuse of discretion. Doe, 118 M.S.P.R. 434, ¶ 38. ¶14 The appellant has not shown that the administrative judge abused his discretion by identifying rac e discrimination and reprisal for prior EEO activity as affirmative defense issues to be adjudicated. PFR File, Tab 1 at 1. The administrative judge’s order summarizing the prehearing conference stated that the app ellant raised race discrimination as an affirmative defense, but, as the administrative judge noted in the initial decision, the appellant withdrew this affirmative defense at the start of the hearing, and so the adm inistrative judge correctly did not a djudicate this issue. IAF, Tab 45 at 5, 7-9, Tab 48 at 1 -2, Tab 52, HR (statement of the appellant); ID at 15. On the other hand, the appellant raised EEO reprisal as an affirmative defense throughout the proceedings, including during the hearing, and thus the administrative judge 10 properly identified and adjudicated this defense. IAF, Tab 1 at 2, Tab 45 at 5, HR (statement of the appellant); ID at 15-18. ¶15 Next, the appellant again raises a claim of harmful procedural error. PFR File, Tab 1. On appeal, he alleged in his prehearing statement and during the hearing that the agency failed to investigate the incidents underlying the charges and did not timely propose his discipline in violation of the applicable collective bargaining agreement (CBA). IAF, Tab 21 at 2, HR (testimony of the appellant). The administrative judge addressed the issue of the timeliness of the discipline in considering whether the charges were stale, but he did not consider the issue the appellant raised as a potential violation of t he CBA. ID at 19-20. ¶16 We find that the administrative judge should have identified and adjudicated this argument raised by the appel lant. However, this error does not warrant reversal of the ini tial decision because it did not adversely affect the appel lant’s substantive rights.7 See Karapinka v. Department of Energy , 6 M.S.P.R. 124 , 127 (1981) (stating that an administrative judge’ s procedur al error is of no legal consequence unless it is shown to have adversely affected a party’s substantive rights ). ¶17 To prove harmful procedural error, the appellant must show both that the agency committed procedural error and that the error was harmful. Rogers v. Department of Defense , 122 M.S.P.R. 671 , ¶ 7 (2015) . The appellant alleged that the agency violated Article 3-6(G) of the CBA, which provides that, “[i]n conducting investigations regarding a non -criminal matter that may resu lt in an adverse determination . . . the parties are reminded that the Privacy Act requires that, to the extent practicable, information should be initially collected directly from the subject employee.” IAF, Tab 4 at 21, Tab 21 at 2. It is unclear whether the agency conducted an “investigation” as contemplated by Article 3-6(G) prior 7 The administrative judge notified the appellant of the elements and his burden to prove harmful procedural error in his order summarizing the prehearing conference. IAF, Tab 45 at 7. 11 to proposing the appellant’s 30 -day suspension, but the questio n of whether the agency c omplied with the Privacy Act is not one over which the Board has jurisdiction. Social Security Administration v. Carr , 78 M.S.P.R. 313 , 333 n.3 (1998), aff’d , 185 F.3d 1318 (Fed. Cir. 1999); see also Martin v. Department of the Army , 251 F.3d 170 (Fed. Cir. 2000) (Table) (holding that alleged violations of the Privacy Act properly lie in district court).8 To the extent that, notwithstanding the Privacy Act, the CBA required the agency, as practicable, to collect information directly from the appellant, we find that the appellant’ s meetings with his supervisors that form the basis of the first charge, and his discussion with his first -level supervisor as narrated in the second charge, meet this standard. IAF, Tab 5 at 30-31. Additionally, contrary to the appellant’s assertions, t he agency was not required under the CBA to conduct an investigation prior to proposing an adverse action. IAF, Tab 4 at 36. The appellant also did not show that the agency failed to timely propose discipline under the CBA, as the applicable CBA provisio n, Article 23-2, does not define a “timely” initiation of an action, nor did the appellant put forth evidence to define the term.9 Id. Even if the appellant could show that the agency violated the CBA, he did not explain why the violations were ha rmful. Thus, the appellant did not show that the agen cy committed harmful procedural error. The administrative judge properly found that the appellan t did not prove his affirmative defenses. ¶18 On review, the appellant has not disputed the administrative judge’ s findings that the appellant did not prove either that a due process error occurred 8 The Board may follow a nonprecedential decision of the U.S. Court of Appeals for the Federal Circuit when, as here, it finds its reasoning persuasive. Morris v. Department of the Navy , 123 M.S.P.R. 662 , ¶ 13 n.9 (2016). 9 The administrative judge excluded witnesses that the appellant claimed would testify about procedural error; however, we find no error in this r uling because the appellant did not articulate the relevance of each witness’s testimony to the procedural errors at issue and has not alleged that the witnesses were able to address the issue of timeliness under the CBA. IAF, Tab 48 at 3. 12 or that the agency unreasonably delayed in bringing stale charges to support its disciplinary action or that he was materially prejudiced by any such delay, ID at 18-20, a nd we see no reason to disturb those findings. ¶19 The appellant, however, asserts that the administrative judge erred in finding that reprisal for his participatio n in protected EEO activity was not a motivating factor in the agency’s decision to suspend hi m. ID at 15-20. In so finding, the administrative judge applied the evidentiary standards set forth in Savage v. Department of the Army , 122 M.S.P.R. 612 , ¶¶ 42-43, 51 (2015) , overruled in part by Pridgen v. Office of Management & Budget , 2022 MSPB 31 , ¶¶ 23 -25; ID at 15-18. In Savage , the Board stated that, when an appellant asserts an affirmative defense of discrimination or reprisal , the Board first will inquire whether the appellant has shown by preponderant evidence that the prohibited consideration was a motivating factor in t he contested personnel action. Savage , 122 M.S.P.R. 612 , ¶ 51. The Board further stated that, in making his initial showing, an appellant may rely on direct evidence or any of the three types of circu mstantial evidence described in Troupe v. May Department Stores Co ., 20 F.3d 734 (7th Cir. 1994) , i.e., pretext, comparator or “convincing mosaic,” either alone or in combination. Savage , 122 M.S.P.R. 612 , ¶ 51. ¶20 The Board has since clarified that Savage does not require administrative judges to separate “direct” from “indirect” evidence and to proceed as if such evidence were subject to different legal standards, or to require appellants to demonstrate a “convincing mosaic” of discrimination or reprisal. Gard ner v. Department of Veterans Affairs , 123 M.S.P.R. 647 , ¶ 29 (2016) , 123 M.S.P.R. 647, ¶ 29 (quoting Ortiz v. Werner Enterprises , Inc., 834 F.3d 760 , 764 (7th Cir. 2016)) , clarified by Pridgen v. Office of Management & Budget , 2022 MSPB 31 , ¶¶ 23 -24. Instead, as the Board stated in Savage , the dispositive inquiry is whether the appellant has shown by preponderant evidence that the prohibited consideration was a motivating factor in the contested p ersonnel action. Gardner , 123 M.S.P.R. 647 , ¶ 30; see Savage , 122 M.S.P.R. at 613, ¶ 51. Here, the 13 administrative judge discussed the distinction between direct and circumstantial evidence , but there is no indication that he disregarded any evidence because it was not direct or circumstantial, and we conclude that he properly considered the evidence as a whole in finding that the appellant failed to prove by preponderant evidence that r eprisal was a motivating factor in the removal action . ID at 15-18. As such, we discern no basis upon which to disturb the administrative judge’s finding s denying the appellant’s affirmative defenses .10 See Clay , 123 M.S.P.R. 245, ¶ 6. The appellant failed to show that the administrative judge was biased or that the administrative judge should have recused himself. ¶21 In addition, the appellant argues that the administrative judge was biased and erred by not recusing himself from the case after the appellant requested recusal and that the administrative judge made adverse rulings against the appellant following the recu sal request. PFR File, Tab 1 at 1. In making a claim of bias or prejudice against an administrative judge, a party must overcome the presumption of honesty and integrity that accompanies administrative adjudicators. Scoggins v. Department of the Army , 123 M.S.P.R. 592 , ¶ 19 (2016); Oliver v. Department of Transportation , 1 M.S.P.R. 382 , 386 (1980). An administrative judge’s conduct during the course of a Board proceeding warrants a new adjudication only if the administrative judge’s comments or actions evidence “a deep -seated favoritism or antagonism that would make fair judgment impossible.” Bieber v. Department of the Army , 287 F.3d 1358 , 1362 -63 (Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540 , 555 (1994)). Here, the appellant’s disagreement with the ad ministrative judge’s rulings i s not sufficient to show bias. Diggs v. Department of Housing & Urban 10 Because we discern no error with the administrative judge’s motivating factor analysis or conclusion regarding this claim, we need not resolve the issue of whether the appellant proved that retaliation was a “but -for” ca use of the agency’ s decision . See Pridgen v. Office of Management & Budget , 2022 MSPB 31 , ¶¶ 20-22, 29 -33. 14 Development , 114 M.S.P.R. 464 , ¶ 9 (2010) . We also have reviewed the administrative judge’s ruling denying the appellant’s motion to recuse and the administrative judge’s conduct in this matter, and we find no evidence of favoritism or antagonism warranting reversal of the initial decision. IAF , Tab 45 at 2-4; see Washington v. Department of the Interior , 81 M.S.P.R. 101 , ¶ 15 (1999) (holding that litigants are entitled t o an unbiased administrative judge, albeit not necessarily one of their choosing, and that an administrative judge “is as much obligated n ot to recuse himself when it is not called for as he is obliged to when it is”) (quoting In re Drexel Burnham Lambert, Inc., 861 F.2d 1307 , 1312 (2d Cir. 1988)) . The administrative judge properly found that a nexus existed between the charged conduct and the e fficiency of the service and that the penalty was within the tolerable limits of reasonableness. ¶22 Finally, t he appellant challenges the administrative judge’s findings that the agency proved a nexus between his conduct and the efficiency of the service . PFR File, Tab 1 at 3-4. However, his arguments regarding nexus address the administrative judge’s rulings and findings regarding the charges , which we have addressed above, and are not relevant to the issue of nexus. The appellant’s arguments challenging the penalty are similarly not relev ant. It is not exactly clear what he is asserting when he argues that the “Table of Penalties relate to my statement that (I am not a child)” and that this and other factors weighed too heavily in the assessment of the penalty. PFR File, Tab 1 at 3. According to the agency, though, it does not have a table of penalties to consider in assessing the appellant’s misconduct. In any event, there is no evidence that the statement that the appellant is referenc ing in this argument was ever considered by the deciding official or the administrative judge in assessing the penalty. Id. at 3; IAF, Tab 5 at 8-17. The record reflects that the administrative judge properly found that the agency proved a nexus between the appe llant’s conduct and the efficiency of the service, and that the penalty was within the tolerable limits of reasonableness. 15 We see no reason to disturb the administrative judge’s well -reasoned findings on these matters. ID at 20-24; see Clay , 123 M.S.P.R. 245 , ¶ 6. ¶23 Accordingly, we affirm the initial deci sion, as modified by this Final Order. NOTICE OF APPEAL RIGHTS11 The initial de cision, 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 repr esent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particula r case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court 11 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 16 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before 17 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 in this case, and your representative receives this decision before you do, then 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 18 (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.12 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for 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. 12 The original statutory provisio n that provided for judicial review of certain whistleblower claims by any court of 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 retroact ive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 19 If you are interested in securing pro bono representation for an appeal to the U.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	KENT_KENNETH_R_DE_0752_16_0391_I_1_FINAL_ORDER_1972944.pdf	2022-10-27	null	DE-0752	NP
3,982	https://www.mspb.gov/decisions/nonprecedential/HASANOV_ZAUR_DE_315H_22_0130_I_1_FINAL_ORDER_1972949.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ZAUR HASANOV, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER DE-315H -22-0130 -I-1 DATE: October 27, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Zaur Hasanov , Hereford, Arizona, pro se. Chief Employee and Labor Relations , Fort Huachuca, Arizona, for the agency. BEFORE Cathy A. Harris, Vice Cha irman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his probationary termination appeal for lack of jurisdiction . On petition f or review, the appellant argues , among other things, t he merits of his termination. Petition for Review File, Tab 1 at 3. 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 requi red to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case ; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and materi al evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how cour ts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 3 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a 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 4 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 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: 5 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 disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in se ction 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Ac t, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit c ourt of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 6 If you submit a petition for judicial review to the U.S. Court of Appeals for the Feder al Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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	HASANOV_ZAUR_DE_315H_22_0130_I_1_FINAL_ORDER_1972949.pdf	2022-10-27	null	DE-315H	NP
3,983	https://www.mspb.gov/decisions/nonprecedential/HASANOV_ZAUR_DE_0731_22_0157_I_1_FINAL_ORDER_1972955.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ZAUR HASANOV, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER DE-0731 -22-0157 -I-1 DATE: October 27, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Zaur Hasanov , Hereford, Arizona, pro se. Eric Lazare , Esquire, San Diego, California, for the agency. BEFORE Cathy A. Harris, Vice Cha irman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his appeal of the agency’s decision to rescind its offer of employment . On petition for review, the appellant argues the merits underlying the rescission of his offer . Petition for Review File, Tab 1 at 3. Generally, we grant petitions 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been id entified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or reg ulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how cour ts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 3 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a 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 4 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 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 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: 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 se ction 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblo wer claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 6 If you submit a petition for judicial review to the U.S. Court of Appeals for the Feder al Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circ uit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interes ted in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appell ants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective w ebsites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	HASANOV_ZAUR_DE_0731_22_0157_I_1_FINAL_ORDER_1972955.pdf	2022-10-27	null	DE-0731	NP
3,984	https://www.mspb.gov/decisions/nonprecedential/MCMINN_KEITH_A_DA_1221_15_0001_W_1_FINAL_ORDER_1972983.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD KEITH A. MCMINN, Appellant, v. DEPARTMENT OF TRANSPORTATION, Agency. DOCKET NUMBER DA-1221 -15-0001 -W-1 DATE: October 27, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jon Velie , Esquire, Norman, Oklahoma, for the appellant. Paul Sanchez , 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 denied his request for corrective action in connection with his individual right of action (IRA) appeal. Generally, we grant petitions such as this one only in the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required 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 following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the adminis trative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence o r legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the init ial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 At all times du ring the matters at issue in this appeal, the appellant was a GS-14 Air Safety Investigator with the agency’s Transportation Safety Institute (TSI) . Initial Appeal File (IAF), Tab 1 at 1.2 On May 13, 2014, he filed a whistleblowing complaint with the Office of Special Counsel (OSC) . There in he alleged that C.L., his “Division Man ager/Director/ Senior Leader, ” acting in her role as a selection panel member, failed to recommend him for a Supervisory Transportation Specialist position for which he had applied and that she also lower ed his performance appraisal . The appellant claimed that C.L. took these actions because : (1) he disclosed to his second -level supervisor that she had creat ed a hostile work environment and engaged in bullying, sex and age discrimination, gross mismanagement, gross waste of funds, an abu se of authority , and a violation of law, rule, or regulation ; and (2) he assisted with and 2 The appellant has since retired. Hearing Transcript (HT) Volume (Vol.) I at 4 (statement of the administrative judge). 3 supported a co worker’s equal employment opportunity (EEO) complaint . IAF, Tab 1 at 34-60. On July 31, 2014, OSC issued the appellant a close -out letter advising him of his right to a ppeal to the Board. Id. at 94-95. On appeal, the appellant repeated his claims and requested a hearing. IAF, Tab 1. ¶3 Thereafter, the administrative judge issued an initial decision in which she first found, based on his written submissions, th at th e appellant had established the Board’s jurisdiction over his appeal. IAF, Tab 45, Initial Decision (ID) at 5. Specifically, she found that he nonfrivolously alleged that at least one of the matter s he reported in his OSC complaint was whistleblowing activ ity that a reasonable person in his position would have believed evidenced protected activity as defined in 5 U.S.C. § 2302 (b)(8) or (9)3 and that he also nonfrivolously alleged that the whistleblo wing activity was a contributing factor in at least one personnel action . ID at 5. ¶4 The administrative judge then found that the appellant established that he engaged in protected activity under 5 U.S.C. § 2302 (b)(9)(B) when he assisted and supported a coworker in filing an EEO complaint , ID at 7-8, and under 5 U.S.C. § 2302 (b)(8) when he made certain disclos ures regarding C.L. that: (1) she committ ed contracting violations, ID at 8-10; (2) she used split disbursements to avoid generating purchase requests, ID at 10; (3) she committ ed time and attendance irregularities by favoring some employees over others, ID at 11-2; and (4) she violat ed purchase rules regarding paying for a mural for the office break room , ID at 12-13.4 The administrative judge also found that the 3 Claims of prohibited personnel practices set forth at 5 U.S.C. § 2302 (b)(9) that are covered by the Whistleblower Protection Enhancement Act are those found at subsections (A)(i), (B), (C), and (D). 4 The administrative judge found that the appellant did not establish th at other disclosures he made were protected, specifically , that C.L. directed employees to go outside of MyG ovTrip to find cheaper airfare while traveling on official business, ID at 10; that she created a hostile work environment and engaged in harassment and bullying, ID at 14-15; and that she made other questionable purchases for the office, ID at 15-16. 4 appellant established that he was affected by a personnel action under 5 U.S.C. § 2302 (a)(2)(A) when he was not selected for the Supervisory Transportation Specialist position.5 ID at 16-17. Notwithstanding C.L.’s contrary testimony, t he administrative judge further found that the appellant established that , based on C.L.’s management duties and the TSI survey ,6 of which she was aware, it wa s likely that she had knowledge of his disclosures and that, given the short amount of time between them and her serving as a member on the selection panel, the appellant establish ed that hi s disclosures were a contributing factor in the panel’s failure to refer his name to the selecting official and in the appellant’s ultimate nonselection . ID at 18-19. The administrative judge found that the appellant also established that the s electing official had actual knowledge of the appellant’s involvement in his coworker’s EEO complaint, ID at 19-20, and knowledge of the appellant’s disclosures regarding C. L.’s contracts, purchase card abuse, and travel policy deviations, ID at 20, and th at, given the short amount of time between the appellant’s protected activity and disclosures and his nonselection, the activity and disclosures were contributing factors in the nonselection , ID at 20-21. ¶5 The administrative judge found, however, that the agency showed by clear and convincing evidence that it would have taken the same action absent the appellant’s protected activity and disclosures. ID at 23-27. Accordingly, the administrative judge denied the appe llant’s request for corrective action. ID at 1, 27. 5 The administrative judge found that the appellant did not establish that his performance appraisal was lowered. ID at 17. 6 In response to issues raised related to the TSI work environment, the agency arranged for an anonymous climate assessment survey to be conducted in July and August 2013 to address the areas of concern and to assist in developing solutions. IAF, Tab 1 at 21-22. 5 ¶6 The appellant has filed a petition for review, Petition for Review (PFR) File, Tab 3, and the agency has submitted a respon se in opposition , PFR File, Tab 14, to which the appellant has repl ied,7 PFR File, Tab 15. ANALYSIS ¶7 The appellant’s petition for review centers on his disagreement with the administrative judge’s finding that the agency proved by clear and convincing evidence that the appellant would not have been selected for the Supervisory Transportation Specialist position, even abs ent his protected disclosures and activity.8 PFR File, Tab 3 at 5-25. ¶8 In determining whether the 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 agency officials involved in the decision; and (3) any evidence that the agency takes similar actions against employees who are not 7 With his reply, the appellant submitted two sets of documents that were not a part of the record below. PFR File, Tab 15 at 17-25, 27 -30. The Board generally will not consider evidence submitted f or 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). Because the evidence is not new, and because the appellant has not shown that unexplained “delays in procurement” of some of the evidence, PFR File, Tab 15 at 6, demonstrates due diligenc e on his part, we have not considered the documents. The appellant also filed a motion for leave to file an additional pleading regarding two decisions issued by the Equal Employment Opportunity Commission (EEOC) addressing his discrimination complaint a gainst the agency. PFR File, Tab 16; see 5 C.F.R. § 1201.114 (a)(5). The agency has opposed the appellant’s motion. PFR File, Tab 18. The decisions of the EEOC regarding the appellant ’s discrimination claims do not directly address the issues before the Board in this IRA appeal , and the decisions themselves do not constitute evidence. We therefore deny the appellant’s motion for leave to file the additional pleading. 8 The appellant does not challenge the administrative judge’s findings that certain of his disclosures were not protected, ID at 10, 14 -16, and that he did not establish that the agency actually lowered his performance appraisal, ID at 17. We discern no basis upon which to disturb those findings. 6 whistleblowers, but who are otherwise simil arly 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). The Board does not view these factors as discrete elements, each of which the agency must prove by clear and convincing evidence, but rather, the Board will weigh the factors together to determine whether the evidence is clear and convincing as a whole. Phillips v. Department of Transportation , 113 M.S.P.R. 73, ¶ 11 (2010). We also have adopted the reasoning of the U.S. Court of Appeals for the Federal Circuit that “[e]vidence only clearly and convincingly supports a conclusion when it does so in the aggregate considering all the pertinent evidence in the record, and despite the evidence that fairly detracts from that conclusion.” Ayers v. Department of the Army , 123 M.S.P.R. 11, ¶ 27 (2015) (quoting Whitmore v. Department of Labor , 680 F.3d 1353 , 1368 (Fed. Cir. 2012)) .9 ¶9 Regarding Carr factor (1), t he administrative judge carefully reviewed the testimony of the selecting official for the Supervisory Transportation Specialist position , including that he chose the panel members because of the skills they possessed . ID at 22-23; Hearing Transcript ( HT) Volume (Vol.) I at 60-63 (testimony of the selecting official) . The panel consisted of a designated Chairman who was a part of TSI but not a membe r of the Aviation Division , a Human Resources (HR) Director , and two technical experts, a Program Manager from another division who previously worked in the Aviation Division and C.L. The administrative judge also considered the panel members’ testimony that, as a group, they referred to the vacancy announcement and the position description to 9 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 , which was extended for 3 years in the All Circuit Review Extension Act, Pub. L. No. 113-70, 128 Stat. 1894 , and eventually made permanent in the All Circuit Review Act, Pub. L. No. 115-195, 132 Stat. 1510 , appellants ma y file petitions for judicial review of Board decisions in whistleblower reprisal cases with any circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703 (b)(1)(B). 7 develop screening criteria against which they scored the candidates’ résumé s and that they then deve loped questions they used to intervi ew and individually score the top 10 candidates , arriving at an overall score for each of them and then forward ing the top two candidates , neither of who m was the appellant , to the selecting official. ID at 23-24; HT Vol. I at 147-48 (testimony of C.L .); HT Vol. I at 200-02 (testimony of the panel Chairman); HT Vol. I at 226-27 (testimony of the other technical expert); and HT Vol. I at 266-69 (testimony of the HR Director). The administrative judge also considered the interview notes made by the panel members, IAF, Tab 25, Subtab 8, specifically , how those notes supported the scores awarded the interviewees. Further, the administrative judge considered the panel members’ testimony that , while the selecte e had less experience in certain technical areas than the appellant , they also were looking for supervisory and communication skills, consistent with the vacancy announcement , IAF, Tab 25, Exhibits 1 and 2 , but that , unlike the selectee, the appellant did not answer certain related questions during the interview clearly a nd concisely. ID at 23; HT Vol. I at 181 (testimony of C.L.); HT Vol. I at 231 (testimony of the other technical expert); HT Vol. I at 272 (testimony of the HR Director); HT Vol. I at 207 (testimony of the panel Chairman). The administrative judge found that the panel members testified in a straightforward and consistent manner that the appellant ’s performance during the interview, as supported by the scores he received, was the reason his name was not passed along to the selecting official and that the panel members testified credibly th at they did not know about the appellant ’s protected disclosures . ID at 25. ¶10 In reaching these findings, the administrative judge considered the appellant ’s claims that the selecting official should not have put C.L. on the panel because he had made protected disclosures concerning her but found credible the selecting official’s explanation that C.L. had the technical expertise and experience in the aviation division that he felt were important to the make -up of the panel . ID at 22, 26. The administrative judge further found that, 8 notwithstanding the appellant ’s significant years of experience, the panel’s reasons for not send ing his name forward to the selecting offici al, as supported by their scoring sheets, were legitimate. ID at 26. ¶11 Regarding Carr factor (2), the administrative judge considered that only C.L. had a motive to retaliate against the appellant because she was the only one against whom allegations were made. ID at 25. The administrative judge found, however , that the panel members testified in a straightforward and consistent manner that they were not improperly influenced by her when assessing the candidates and that she never demonstrated any animosity towards the appellant. ID at 25; HT Vol. I at 237 (testimony of the other technical expert); HT Vol. I at 282 (testimony of the HR Director); HT Vol. I at 212 (testimony of the panel Chairman). The administrative judge considered whether the selecting official allowed C.L. to improperly influence the recommendation or his ultimate selection but found that his testimony concerning the selection process was credible and that he had littl e, if any, motive to retaliate against the appellant for his whistleblowing activity s ince the selecting official was not implicated by the disclosures . The administrative judge further found that the selecting official was a new member of management for TSI10 and that it was unlikely he believed that he would be held accountable for issues that occurred and conditions that existed prior to his arrival. ID at 26. ¶12 Regarding Carr factor (3), the administrative judge found no evidence that the agency failed to take similar actions against employees who were not whistleblowers but who are otherwise similarly situated. The administrative judge further found that, notwithstanding that the appellant had more years of experience in certain areas, the agency’s ex plained reasons for not selecting him 10 The selecting official was named as the TSI Director in February 2014, HT Vol. I at 11 (testimony of the selecting official), and the selection in question occurred in April 2014. 9 were legitimate, ID at 26, and that, based on the Carr factors, the agency’s decision was supported by clear and convincing evidence , ID at 26-27. ¶13 On review, the appellant argues that the administrative judge failed to find that the selecting official’s appointment of C.L. to the panel violated 5 U.S.C. § 2302 (b)(9) , and therefore was a per se violation of the agency’s Merit Promotion Plan, and that his authorization for C.L. and the panel to define the scope or manner of competition so as to injure the appellant’s employment prospects violated 5 U.S.C. § 2302 (b)(6) , and therefore also was a per se violation of the agency’s Merit Promotion Plan. PFR File, Tab 3 at 5-6. Whether the appointment of C.L. to the panel violated the agency’s plan, and whether the panel’s defining the scope of competition for the position in question violated 5 U.S.C. § 2302 (b)(6) or the agency’s plan , were not among the issues in dispute in this case and therefore w ere considered to be prec luded , as evidenced by the administrative judge’s prehearing conference summary. IAF, Tab 31 at 2. Because t he appellant failed to object to the administrative judge’s ruling in this regard, this issue is not properly be fore the Board. Crowe v. Small Business Administration , 53 M.S.P.R. 631, 635 (1992). ¶14 On review, t he appellant argues that the selecting official assigned C.L. to the pa nel, even though he knew the appellant had lodged complaints against her, and that she tainted the panel’s deliberations. PFR File, Tab 3 at 6-7, 11. As noted, the administrative judge considered that C.L. had a motive to retaliate against the appellant but found credi ble the other three panel members ’ testimony that C.L. did not influence them. ID at 25. The Board defer s to an administrative judge’s credibility determinations when they are based, e xplicitly or implicitly, on observing the demeanor of witnesses testifying at a hearing , overturn ing such determinations only when it has sufficiently sound reasons for doing so. See Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002). The appellant contends that, although two of the panel members testified that they independently scored the candidates, the HR Director contradicted that testimony. 10 PFR File, Tab 3 at 6. The administrative judge recounted the HR Director’s testimony that panel members compared the scores they had given to ensur e that one member’s scores were not completely out of line with the scores of the others, that the panel wanted consistent s cores but that equal scores were not required and that , if they learned that they had not “captured” something during a candidate’s interview, members could , but did not necessarily, change their scores after the discussions. ID at 23; HT Vol. I at 279-81, 287 (testimony of the HR Director) . Nonetheless, as the administrative judge found that the HR Director testified consistent wi th the other panel members, C.L. did not attempt to improperly influence the process in any way and did not say anything inapp ropriate about the appellant. ID at 23-24; HT Vol. I at 282 (testimony of the HR Director). The fact that the panel members’ scoring sheets were similar does not, as the appellant argues, suggest that C.L. controlled the panel’s deliberations, PFR File, Tab 3 at 6, 14-15, particularly given the clear, objective scoring criteria developed by the panel , IAF, Tab 25, Subtab 8 at 1-4. Under the circumstances, we find that the appellant has not provided sufficiently sound reasons for overturning the administr ative judge’s credibility determinations which were based on her observations of the witnesses’ demeanor , and we therefore find it appropriate to defer to th ose determinations . ¶15 In challenging the administrative judge’s findings regarding Carr factor (1), the appellant argues that his qualifications are superior to the selectee’s, that certain of the selectee’s experience s should not have been considered, an d that the panel members should not have marked the appellant down for the manner in which he pr ovided his answers to the interview questions. He suggests that two of the panel members lacked the technical expertise to properly score his résumé , and he disputes the way the panel score d the candidates ’ experience . PFR File, Tab 3 at 11-16. These cl aims go to the merits of the selection action, and the appellant’s clear belief that he is the best qualified candidate and should have been selected. However, in IRA appeals where the action at issue is not 11 otherwise appealable to the Board, as in the in stant case, the Board lacks the authority to adjudicate the merits of the underlying action and can only adjudicate the whistleblowing allegations. See Marren v. Department of Justice , 51 M.S.P.R. 632, 639 (1991), aff’d, 980 F.2d 745 (Fed. Cir. 1992) (Table) , and modifi ed on other grounds by Robinson v. U.S. Postal Service , 63 M.S.P.R. 307, 323 n.13 (1994) . Therefore, the Board cannot independently review the appellant’s or the other candidates’ qualificati ons and determine on its own whether the best qualified candidate was selected. ¶16 In challenging the administrative judge’s findings regarding Carr factor (2), the appellant points to evidence , not considered by the administrative judge , tending to show th at C.L. bore ill will towards the appellant .11 PFR File, Tab 3 at 18. The administrative judge ’s failure to mention this evidence , however, does not mean that she did not consider it in reaching her decision. Marques v. Department of Health & Human Services , 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). In any event, she clearly found that C.L. had a mot ive to retaliate against the appellant , ID at 25, even though the administrative judge ultimately found that C.L. did not interfere with the selection process or exert influence over the evaluations of the other panel members , ID at 26. The appellant also argues that the selecting official did have a motive to retaliate because, even though he was a new manager and was not implicated by the appellant’s protected disclosures and activity, hiring a “known whistleblower” would have hurt his career. PFR File, Tab 3 at 17-18. The Board has held that an appellant’s criticisms cast the agency, an d by implication all responsible officials, in a highly critical light by calling into question the propriety and honesty of their official conduct and that, t herefore, even when a senior manager is not directly implicated or harmed by protected disclosures, an 11 For example, the selectee testified that C.L. told him that “the three amigos must go ,” apparently referring to the appellant and two coworkers who also had issues with her management style. HT Vol. II at 316 (testimony of the selectee). 12 appellant’s criticisms can reflect on the manager in his capacity as such and may be sufficient to establish a substantial retaliatory motive. Chavez v. Departme nt of Veterans Affairs , 120 M.S.P.R. 285, ¶ 33 (2013) ; see also Whitmore , 680 F.3d at 1370 -71.12 Here, however, the selecting officia l was not a responsible official because, as the administrative judge found, he was not a member of TSI management when the matters which formed the basis for the appellant’s protected disclosures occurred. In any event, to the extent the selecting official may have harbored retaliatory animus against the appellant because of possible concerns that the conduct that he disclosed reflected badly on TSI or the agency, we find that any such motive was slight. 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 problems 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 egreg ious and generated negative publicity, thereby reflecting poorly on the agency’s general institutional interests) . ¶17 In challenging the administrative judge’s findings regarding Carr factor (3), the appellant argues that two other candidates who were whistleblowers also were not selected , and he contends that the panel did not properly credit their experience . PFR File, Tab 3 at 22. The test, however, as established by the court in Carr , is whether there is any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated. Carr , 185 F.3d at 1323 . To the extent evidence on Carr factor (3) exists, the agency is required t o come forward with all reasonably pertinent evidence; the failure to do so may be at the agency’s peril. Smith , 2022 MSPB 4 , ¶ 30; see also Whitmore , 680 F.3d at 1374 . Absent relevant comparator evidence, 12 We are aware of no other circuit courts which have considered this issue. 13 Carr factor (3) cannot weigh in favor of the Government. Soto , 2022 MSPB 6 ¶ 18; see also Siler v. Environmental Protection Agency , 908 F.3d 1291 , 1299 (Fed. Cir. 2018). The administrative judge here found that there was no comparator evidence , and as such, we cannot find on this record that Carr factor (3) favors the agency. ¶18 In sum, weighing the Carr factors together, we agree with the administrative judge ’s finding that the agency proved by clear and convincing evidence that it would not have selected the appellant for the position in question, even absen t his protected disclosures and activity.13 NOTICE OF APPEAL RIGHTS14 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking 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 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 13 In so finding, we note that the administrative judge did not prevent the appellant from effectively presenting his whistleblowing claim, and her thorough initial decision shows that she closely listened to the testimony of witnesses from both sides, including th ose who bolstered the appellant’s whistleblowing claim. 14 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 14 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants, ” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro 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 15 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district co urt 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 Commis sion (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar d ays after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EE OC no later than 30 calendar days after your representative 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 16 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, 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 fi le a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.15 The court of appeals must receive your petition for review within 60 days of the date of issuance of this d ecision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 15 The ori ginal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, perma nently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circui t Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 17 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of part icular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the service s provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	MCMINN_KEITH_A_DA_1221_15_0001_W_1_FINAL_ORDER_1972983.pdf	2022-10-27	null	DA-1221	NP
3,985	https://www.mspb.gov/decisions/nonprecedential/CACERES_JULIO_AT_0752_21_0301_I_1_FINAL_ORDER_1973023.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JULIO CACERES, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER AT-0752 -21-0301 -I-1 DATE: October 27, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Aaron D. Wersing , Esquire, and Andrew R. Young , Esquire, Houston, Texas, for the appellant. Brett P. Hargaden , Esquire, and Jennifer J. Veloz , Esquire, Miami, Florida, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed his removal from Federal service. Generally, we grant petitions such as 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not requ ired to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 this one only in the following circumstances: the initial decision contains erroneous findings o f material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initia l decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we con clude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to supplement the analysis as to the failure to obtain authoriza tion for outside employment charge , we AFFIRM the initial decision. ¶2 The administrative judge found that the agency proved the failure to obtain authorization for outside employment charge because the appellant did not request approval to engage in business dealings with OVI Gro up, LLC, and Bureau Assets, LLC . Initial Appeal File (IAF), Tab 40, Initial Decision ( ID) at 8-13. Although the charge explicitly states that the failure to obtain authorization violated agency policy and 5 C.F.R. § 4601.103 (a), the initial decision did not include a specific discussion of the policy and regulation. W e therefore supplement the initial decision to do so . Section 4601.103 requires that empl oyees of the Department of Homeland Security obtain prior written approval before engaging in any outside employment or activity. In relevant part, o utside employment or activity is defined a s “any form of non -Federal employment, business activity, busine ss relationship . . . involving the provision of personal servi ces by the employee, whether or not for compensation . . . includ [ing], but . . . not limited to, personal services as an officer, director, employee, agent, attorney, advisor, consultant, cont ractor, general partner, trustee, or teacher.” 3 5 C.F.R. § 4601.101 (d)(2). Similarly, Customs and Border Protection policy states that employees must complete and submit the appropriate form for approval before entering into any outside employment or bus iness activity. IAF, Tab 12 at 23. We agree with the administrative judge’s finding that the appellant engaged in activity covered by these regulations and policy through his involvemen t as the registered agent and president of OVI Group , LLC, and through his dealings with Bureau Assets, LLC, and that the appellant did not obtain written approval prior to engaging in the employment. ID at 8 -12. We have considered the appellant’s remain ing arguments in his petition for review , and we discern no basis to disturb the findings in the initial decision. We therefore deny the petition for review and affirm the initial decision as modified herein. NOTICE OF APPEAL RIG HTS2 The initial decision , as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which 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 re quirements. Failure to file 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 within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read 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). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the 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. 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 ap pealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriat e U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decisio n before you do, then you must 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 disabl ing condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.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: 6 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C . § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2 302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your pe tition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 3 The origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D .C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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	CACERES_JULIO_AT_0752_21_0301_I_1_FINAL_ORDER_1973023.pdf	2022-10-27	null	AT-0752	NP
3,986	https://www.mspb.gov/decisions/nonprecedential/DAVIDSON_RETHA_G_AT_0845_17_0454_I_1_FINAL_ORDER_1973054.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD RETHA G. DAVIDSON, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER AT-0845 -17-0454 -I-1 DATE: October 27, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Retha G. Davidson , Deer Lodge, Tennessee, pro se. 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 affirmed the reconsideration decision issued by the Office of Personnel Management (OPM) concerning an overpayment of her annuity . 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 discussed below, we GRANT the appellant’s petition for review , VACATE the initial decision, and DISMIS S the instant appeal for lack of jurisdiction. ¶2 The appellant was a Rural Carrier for the U.S. Postal Service. Initial Appeal File (IAF), Tab 1 at 3. She applied for disability retirement in May 2008. IAF, Tab 7 at 73. OPM approved the application in October 2008. Id. at 64 -66. Among other things, the approval letter explained that the appellant was required to apply for Social Security disability benefits and, if awarded, those benefit checks should not be negotiated until her disability retirement annuity was reduced. Id. at 65. In August 2009, OPM sent the appellant another letter, asking about the status of her application for Social Security disability benefits and reiterating that, if she was awarded those benefits, her disability retirement annuity must be reduced. Id. at 67. ¶3 In September 2013, OPM notified the appellant that she had been overpaid $59,278 in disability retirement benefits between July 2008 and August 2013, as a result of her Social Security disability benefits. Id. at 43 -45. In October 2013, the appellant requested a waiver. Id. at 37 -41. In March 2017, OPM issued a reconsideration decision that affirmed its prior decision, but wrote off $30,345.84 of the overpayment because of the appellant’s bankruptcy, leaving a remaining balance of $28,932.16. Id. at 5, 7 -10. ¶4 The appellant filed the instant appeal, challenging OPM’s reconsideration decision. IAF, Tab 1. After providing both parties an opportunity to present argument and evidence, the administrative judge affirmed OPM’s decision. IAF, Tab 10, Initial Decision ( ID) at 1. She found that OPM proved the existence and amount of the overpayment, ID at 3 -4, but the appellant failed to prove that she was entitled to a waiver of the overpayment or adjustment of th e repayment schedule, ID at 4 -7. The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. OPM has filed a response. PFR File, Tab 4. ¶5 On review, the appellant submitted additional evidence relevant to her alleged overpayment , along with arguments as to why she failed to submit this 3 evidence below. Compare PFR File, Tab 1 at 1, 27 -35, with IAF, Tab 7 at 4. Under the unique circumstances, the Board issued an order to further develop the record. PFR File, Tab 5. OPM responde d by reversing course and requesting that the Board now dismiss the appeal for lack of jurisdiction. PFR File, Tab 6 at 4 -5. In a sworn statement , OPM indicated that it rescinded the reconsideration decision at issue in this appeal because the aforementi oned evidence submitted on review warrant ed waiver, so it would not be collecting the $28,932.16 overpayment. Id. at 5. ¶6 The Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule , or regulation. Maddox v . Merit Systems Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). In particular, if OPM rescinds a reconsideration decision, the rescission dives ts the Board of jurisdiction over the appeal in which the reconsideration decision is at issue, and the appeal must be dismissed. Martin v. Office of Personnel Management , 119 M.S.P.R. 188 , ¶ 8 (2013). An exception to this rule does exist where OPM has rescinded its decision but failed to restore the appellant to the status quo ante. Id., ¶ 10. However, that exception does not apply in this case because there is no indication that OPM ever began collecting the alleged overpayment. IAF, Tab 7 at 10. Accordingly, we must vacate the initial decision and dismiss the instant appeal for lack of jurisdiction. NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summar y of available appeal rights, the Merit 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 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 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 5 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 representative receives this decision. If t he action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims 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, 6 and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C . 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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. 7 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of 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. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 8 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	DAVIDSON_RETHA_G_AT_0845_17_0454_I_1_FINAL_ORDER_1973054.pdf	2022-10-27	null	AT-0845	NP
3,987	https://www.mspb.gov/decisions/nonprecedential/BLACK_ARTHUR_AT_3443_17_0480_I_1_FINAL_ORDER_1972523.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ARTHUR BLACK, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER AT-3443 -17-0480 -I-1 DATE: October 26, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Arthur Black , Fresno, California, pro se. Mark Manta , Esquire, Philadelphia, Pennsylvania, 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 nonselection appeal for lack of jurisdiction. 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 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or th e initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due dil igence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 On petition for review, the appellant repeats his argument that he was not allowed to apply for a position, which he identifies for the first time as postal inspector, due to race and age discrimination. The appellant also reiterates his general reference to a previous Board appeal, and he seeks to introduce new evidence regarding his nonselection. Petition for Review (PFR) File, Tab 1. The appellant also seeks to submit new evidence on review , namely “emails from the agency that said [he] was not allowed to apply for the position of postal inspector because [he] was not competitive or fulfilled requirements .” Id. at 3. He argues that he did not submit this evidence into the record below because “ the agency lied and refused to reply to inquiry.” Id. at 3-4. He actually did not submit the purported new evidence with his petition for review . In any event, we would no t have considered the evidence because the appellant has failed to show that the emails , for which he provides little information, are new or material or demonstrate how the agency’s “lies” prevented him from submitting them into the record below . See Ava nsino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980) (stating that, under 5 C.F.R. § 1201.115 , the Board will not consider evidence submitted for the first time on review absent a showing that it was unavailable 3 before the record was closed de spite the party’s due diligence ). Moreover, the Board generally will not grant a pet ition 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 provided no argument or facts describing how the emails would alter the dispositive jurisdictional finding in the initial decision. ¶3 The appellant asserts that he was eligible to apply for the postal inspector position based on his qualifications and status as a disabled veteran. PFR File, Tab 1 at 3 -4. H owever, h e has not alleged any facts that might implicate jurisdiction pursuant to the Veterans Employment Opportun ities Act of 1998 or the Uniformed Services Employment and Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C. §§ 4301 -4335). Initial Appeal File (IAF), Tab 1; PFR File, Tab 1. Instead, he argues that his nonselection was the result of race and age discrimination. PFR File, Tab 1 at 3 -4. T he Board lacks jurisdiction over such discrimination claims absent an otherwise appealable action . See Wren v. Department of the Army , 2 M.S.P.R. 1 , 2 (1980), aff’d, 681 F.2d 867 , 871 -73 (D.C. Cir. 1982). ¶4 On review, the appellant asserts that he was “allow ed to apply” for a position 4 years after he filed a previous Board appeal , and he seeks Board approval now to apply for the unspecified position in the present appeal. PFR File, Tab 1 at 5. In his initial appeal, the appellant had alleged that the agency’s denial of his “opportunity to apply for employment” was in part “motivated by retaliation for previous [Board] activity for the same offense.” IAF, Tab 1 at 5. The administ rative judge noted this a rgument in the initial decision but did not address it in his jurisdictional determination . IAF, Tab 5, Initial Decision at 1 -2. Board records show that the appellant filed a prior appeal in October 2012 alleging that he had been denied the opportunity to apply for a postal inspector position because of his age. Black v. U.S. Postal Service , MSPB Docket No. SF-3330 -13-0129 -I-1, Initial Decision (Jan. 14, 2013) . That appeal was 4 dismissed as withdrawn by t he appellant , and nothing in the prior appeal record impacts the jurisdictional determination in the present appeal. Id. ¶5 Accordingly, we deny the petition for review and affirm the initial decision. NOTICE OF APPEAL RIG HTS2 You may obtain review of this f inal decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the ri ghts described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefull y follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to 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. 5 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 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 6 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. distri ct 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 th e EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then 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 7 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of 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 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 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law b y the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 8 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	BLACK_ARTHUR_AT_3443_17_0480_I_1_FINAL_ORDER_1972523.pdf	2022-10-26	null	AT-3443	NP
3,988	https://www.mspb.gov/decisions/nonprecedential/TORDIL_EULALIO_S_DC_0752_16_0673_I_1_FINAL_ORDER_1972535.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD EULALIO S. TORDIL, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER S DC-0752 -16-0673 -I-1 DC-0752 -16-0671-I-1 DATE: October 26, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Brian R. Bregman , Esquire, Laurel, Maryland, for the appellant. David M. Burns , Esquire, and Nicholas R. Hankey , 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 that dismissed his indefinite suspension appeals without prejudice to refiling . We decline to reach the issue of whether the administrative judge abused his 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required 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). discretion in dismissi ng the appeals without prejudice because the conditions for refiling have now been met . See Burke v. Department of Veterans Affairs , 94 M.S.P.R. 1 , ¶ 5 (2003). We therefore DENY the petition for review and FORWARD these appeals to the regional office to be considered as timely refiled appeals. See Henry v. Department of Veterans Affairs , 110 M.S.P.R. 213 , ¶ 6 (2008). The initial decision 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 Protecti on 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 rev iew 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 cho sen forum. Please read 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. 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. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal C ircuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 opti on applies to you only if you have claimed that 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 inv olves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other securi ty. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEO C via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protect ed activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited p ersonnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or a ny court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the 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. 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. If you are interested in securing pro bono representation for an 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	TORDIL_EULALIO_S_DC_0752_16_0673_I_1_FINAL_ORDER_1972535.pdf	2022-10-26	null	S	NP
3,989	https://www.mspb.gov/decisions/nonprecedential/BENNETT_ERIC_NY_0752_14_0073_C_2_ORDER_1972541.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ERIC BENNETT, Appellant, v. DEPARTMENT OF TRANSPORTATION, Agency. DOCKET NUMBER NY-0752 -14-0073 -C-2 DATE: October 26, 2022 THIS ORDER IS NONPRECEDENTIAL1 Jonathan Bell , Esquire and Susan Tylar , Garden City, New York, for the appellant. Daniel P. Kohlmeyer , Esquire, Jamaica, New York, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leav itt, Member ORDER ¶1 This matter is before the Board on the appellant’s petition for review of the compliance initial decision , which granted in part and denied in part his petition for enforcement of the Board’s final decision reversing his removal . For the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 reasons discussed below, we GRANT the appellant’s petition for review. We AFFIRM the compliance initial decision AS MODIFIED to find the agency in noncompliance to the extent it failed to provide sufficient and clear information regarding its c alculation of the appellant’s overtime hours as a part of the back pay award and ORDER the agency to submit satisfactory evidence of compliance. BACKGROUND ¶2 The appellant was employed by the agency as an Air T raffic Control Specialist . Bennett v. Departme nt of Transportation , MSPB Docket No. NY-0752 -14-0073 -I-2, Appeal File, Tab 21 , Initial Decision (ID) at 1. On March 25, 2011, he experienced an on -the-job injury when he had a debilitating emotional response after he descended an aircraft too soon and lo st separation between the aircraft that was descending and one taking off, nearly causing a mid-air collision. ID at 2. As a result of the emotional trauma, the appellant was unable to work. ID at 2-6. After years of medical visits and documentation an d questions on whether he could return to work, the agency removed the appellant for nondisciplinary reasons, effective November 9, 2013. ID at 2, 12 -13. ¶3 On July 29, 2016, an administrative judge issued an initial decision finding that the agency imprope rly removed the appellant and ordering the agency to cancel the removal and retroactively restore the appellant , effective November 9, 2013. ID at 27, 3 7. It also ordered the agency to pay the appellant the appropriate amount of back pay with interest an d to adjust benefits with appropriate credits and deductions. ID at 37. Neither party petitioned for review of the initial decision, which became final on September 2, 2016. ID at 40. ¶4 On January 23, 2017, the appellant filed a petition for enforcement. Bennett v. Department of Transportation , MSPB Docket No. NY -0752 -14-0073 -C-1, Compliance File (C -1 CF), Tab 1. The administrative judge dismissed the appeal without prejudice to allow the parties to sort through some of the enforcement issues that the ap pellant had raised. C -1 CF, Tab 13 , Compliance Initial Decision . Upon the automatic refiling of the petition for enforcement, the 3 appellant narrowed the scope of his enforcement challenges and argued that : (1) the agency failed to correctly calculate hi s overtime pay; (2) the agency faile d to pay an award; and (3) it failed to give the appellant the opportunity to “buy back” his leave. Bennett v. Department of Transportation , MSPB Docket No. NY-0752 -14-0073 -C-2, Compliance File (C -2 CF), Tab 6 at 6 -8. ¶5 On August 1, 2017, the administrative judge issued a compliance initial decision granting the petition for enforcement in part and denying it in part. C-2 CF, Tab 11, Compliance Initial Decision (CID). Specifically, she found that the agency established that the appellant complied with the Board’s final decision regarding the back pay computation for overtime hours and that the appellant was not entitled to buy back leave. CID at 3-6. Accordingly, the administrative judge denied the petition for enforce ment regarding these two issues. CID at 6. However , the administrative judge also granted the petition in part, finding that the agency failed to establish that it paid the ap pellant a bonus award to which he was entitled. CID at 4-6. ¶6 The appellant has filed a petition for review of the compliance initial decision arguing that the administrative judge erred in finding that the agency correctly computed the overtime hours he was due as a part of the back pay award. Petition for Review (PFR) File, Tab 3 at 6-9. The agency has filed a response. PFR File, Tab 5. DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶7 When the Board reverses a personnel action, it orders that the appellant be placed, as nearly as possible, in the same situation he would have b een in had the wrongful personnel action not occurred. Rittgers v. Department of the Army , 123 M.S.P.R. 31 , ¶ 13 (2015) . Overtime back pay may be computed based on either the appellant’s own overtime history or the average overtime hours worked by similarly situated employees during the relevant time period. Id. Although the appellant is not entitled to receive a windfa ll, he is entitled to be restored to the status quo ante, and the agency must use the method of computation most 4 likely to achieve this goal. Id. The Board will not nullify the method employed by the agency in calculating overtime back pay in the absence of a showing that the method was unreasonable or unworkable, id., but the agency bears the ultimate burden of proving its compliance wit h a Board order, New v. Department of Veterans Affairs , 106 M.S.P.R. 217 , ¶ 6 (2007) , aff’d , 293 F. App’x 779 (Fed. Cir. 2008) . The agency’s selection of method to compute the appellant’s overtime hours was reasonable. ¶8 Here, the agency asserts that it relied on the appellant’s prior overtime history for 2010, the year before his injury , to accurately estimate the amount of overtime hours to include in his back pay award. C-1 CF, Tab 7 at 5 -6, 13 ; PFR File, Tab 5 at 4 -5. To support this decision, the a gency submitted 2011 overtime records of similarly situated employees, which demonstrate that the appellant’s average overtime hours applied to the back pay period exceed the average overtime hours worked by similarly situated employees a year later. C -2 CF, Tab 7 at 8. It also submitted an affidavit from a staff manager stating that there was no mandatory overtime policy at the appellant’s station in 2011. Id. at 7. Based on this evidence, the administrative judge found that the agency’s decision to pa y the appellant overtime based on his pre -removal overtime hours was not unreasonable. CID at 4. ¶9 The appellant argued below and again on review that overtime became mandatory in 2011 and that the average hours of overtime worked by similarly situated employees increased substantially in 2016. PFR File, Tab 3 at 6. To support these claims, the appellant submitted an affidavit and what purport to be the overtime records of allegedly s imilarly situated employees for 2016. C -1 CF, Tab 9 at 5 -6, 9, 12 -13, 26. Thus, the appellant argues that because agency policy and r equirements changed after 2010 and there was a demonstrable increase in overtime worked in 2016, it was not reasonable for the agency to rely on 2010 5 records to calculate his overtime hours for the back pay period. PFR File, Tab 3 at 6-9. ¶10 We find no reason to disturb the agency’s method of selection in calculating overtime hours . The appellant’s affidavit is directly contradicted by the staff manager’s affidavit, and there is no other evidence in the record proving that there was mandatory overtime during any period between 2011 and 2016. Further, the appellant has only submitted 1 year of overtime records. The record contains no additional evidence showing that between 2012 and 2015, similarly situated employees worked overtime hours consistent with the 2016 records and in substantial excess of the appellant’s hours in 2010 and the average in 2011. Based on the foregoi ng, we agree with the administrative judge’s conclusions and find that the appellant has failed to show that the agency’s selected method was unreasonable. Accordingly, we will not nullify that selection. See Rittgers , 123 M.S.P.R. 31 , ¶ 13. The agency has not presented clear and understandable evidence that its calculation for the appellant’s overtime hours was accurate. ¶11 Nonetheless, despite our agreement with the administrative judge that the agency’s decision to pay the appellant overtime based on his pre -removal overtime hours was not unreasonable, we find that the agency has failed to meet its ultimate burden of provin g compliance regarding the overtime calculations . See Stone v. Department of Health & Human Services , 38 M.S.P.R. 634 , 638 (1988) (statin g that it is within the Board’s authority to address an issue not raised by the parties before the initial decision becomes final). The Board has held that an agency’s assertion of compliance must include a clear explanation of its compliance actions supp orted by credible evidence and understandable documentary evidence. Tubesing v. Department of Health & Human Services , 112 M.S.P.R . 393 , ¶ 17 (2009) . We find that the evidence submitted by the agency to demonstrate the accuracy of its calculations is neither clear nor understandable. 6 ¶12 Here, the administrative judge concluded that the agency estimated the appellant’s overtime at 232 hours. CID at 4. However, there does not appear to be any evidence in the record that explicitly confirms this number . Thus , to arrive at this number, we are left to assume that t he administrative judge pieced together several documents to effectively make the agency’s case for it. To wit, the record includes an affidavit from a Payroll Program Specialist that provides overtime hours retroactively granted to the appellant per a series of time segments during the back pay period. C-1 CF, Tab 7 at 9-11. The affidavit does not clearly state that the appellant earned 232 hours of overtime in 2010. Rather, t o arrive at the 232 number , one must read this affidavit in conjunction with another affidavit from a Management Support Specialist, who stated t hat she “used the hours Mr. Bennett worked in each pay period the one year prior to his [Office of Workers’ Compensation Programs] injury . . . [and] applied these hours to the same pay periods in 2015 and 2016.” 2 C-1 CF, Tab 7 at 13. If one refers back to the Payroll Program Specialist’s aff idavit and adds up the overtime granted to the appellant between January 11 through June 13, 2015, and June 14, 2015 , through January 9, 2016, one arrives at 231.5 hours, or approximately 232 hours , as stated by the administrative judge. Id. at 10 -11; CID at 4. ¶13 If the inquiry ended there, we would agree with the administrative judge that the agency presented sufficient evidence of its calculation of overtime hours for the back pay period. However, the Management Su pport Specialist said in her affidavit that these numbers were applied to 2015 and 2016 . C-1 CF, Tab 7 at 13. If we refer back to the Payroll Program Specialist ’s affidavit, the appellant was 2 When this affidavit was submitted, the agency took the position that it was not required to pay back pay during the Office of Workers’ Compensation Programs (OWCP) period because the appellant already was receiving outside compensation from OWCP. C -1 CF, Tab 7 at 5. Thus, it only applied the appellant’s 2010 overtime hours to 2015 and 2016. Id. at 13. The administrative judge has since ruled that the agency was required to pay the appellant back pay during the entire back pay period, minus any deductio ns, including an offset for any OWCP wage replacement benefits he actually received. C -1 CF, Tab 12 at 1 -2. 7 granted approximately 153 overtime hours in 2016 . Id. at 11. Although the back pay calculations ended in October 2016 , and therefore did not include the entire year because the appellant had been reinstated by that time , id. at 19 , if the Management Support Specialist’s claim that the same numbers were appl ied to 2015 and 2016, the time periods of January through June would be the same for both years, yet they are not, id. at 9-14. To further confuse matters, the appellant submitted what appear to be 2010 overtime records , which reflect his hours of overtim e worked as 215 hours. C -1 CF, Tab 9 at 9. Therefore, we find that the agency has failed to present clear and understandable evidence that its calculation of the appellant’s overtime hours is accurate and thus has failed to meet its burden to show that i t is in full compliance with the back pay award ordered in the final decision reversing his removal. ORDER ¶14 We ORDER the agency to submit to the Clerk of the Board within 60 days of the date of this Order satisfactory evidence of compliance. This evidence shall adhere to the requirements set forth in 5 C.F.R. § 1201.183 (a)(6)(i), including submission of evidence and a narrative statement of compliance. The agency’s submission shall demo nstrate that it properly calculated the appellant’s overtime hours for 2010 and that the back pay awarded to the appellant reflects that calculation. The agency must serve all parties with copies of its submission. ¶15 The agency’s submission should be filed under the separate docket number assigned to th e compliance referral matter , MSPB Docket No. NY-0752 -14-0073 -X-1. All subsequent filings should refer to that compliance referral 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 8 Submissions may also be made by electronic filing at the MSPB’s e -Appeal site (https://e -appeal.mspb.gov) in accordance with t he Board’s regulation at 5 C.F.R. § 1201.14 . ¶16 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. ¶17 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 t he 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 not been complied with.” 5 U.S.C. § 1204(e)(2)(A). ¶18 This O rder 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: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	BENNETT_ERIC_NY_0752_14_0073_C_2_ORDER_1972541.pdf	2022-10-26	null	NY-0752	NP
3,990	https://www.mspb.gov/decisions/nonprecedential/ELHELBAWY_MONA_DE_1221_15_0438_W_1_FINAL_ORDER_1972570.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MONA ELHELBAWY, Appellant, v. DEPARTMENT OF COMMER CE, Agency. DOCKET NUMBER DE-1221 -15-0438 -W-1 DATE: October 26, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Mona Elhelbawy , Boulder, Colorado, pro se. Christiann C. Burek , Esquire, and Sandra Soderstrom , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her individual right of action (IRA) appeal for lack of jurisdiction and as barred by res judicata. On petition for review, the appellant challenges her removal and the administrative judge’s and the Board’s decisions in her prev ious 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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 appeal of that action. The appellant also disputes the administrative judge’s finding that she failed to establish the Board’s jurisdiction in this IRA appeal . And, the appellant argues that the administrative judge abused her discretion in denying a motion. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for r eview. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for yo ur 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 y our claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of rev iew below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a g eneral rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this dec ision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our 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 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. distri ct 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 th e EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives t his 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 Fed eral Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Ope rations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)( 9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 6 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you 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 pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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	ELHELBAWY_MONA_DE_1221_15_0438_W_1_FINAL_ORDER_1972570.pdf	2022-10-26	null	DE-1221	NP
3,991	https://www.mspb.gov/decisions/nonprecedential/FAIR_FREDERICK_DC_3330_14_0296_I_1_FINAL_ORDER_1972586.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD FREDERICK FAIR, Appellant, v. DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER DC-3330 -14-0296 -I-1 DATE: October 26, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Frederick Fair , Alexandria, Virginia, pro se. Michael J. Buxton and William R. Kraus , Alexandria, Virginia, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed in part and denied corrective action in part in his Veterans Employment Opportunities Act (VEOA) appeal, and denied corrective action in his Uniformed Services Emp loyment and Reemployment Rights Act (USERRA) appeal. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or 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 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 inte rpretation 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 secti on 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 The appellant is a preference -eligible veteran who retired from the U.S. Army in 2011 and who currently serves in the agency under a term appointment as a Senior Program Analyst, GS -14. He filed a Board appeal in which he alleged that , in 2013, he timely applied through USA Jobs, under vacancy announcement # IG-094-13-MP, for the p ermanent p osition of Program Analyst, GS -14, but was not selected , Initial Appeal File (IAF), Tab 1 at 1 -2, 23-27, and that his nonselection was a violat ion of his rights under VEOA , id. at 2. In addition, he stated that , in 2013, he also applied for the position of Supervisory Program Analyst, GS -15, but was not selected. Id. at 12-13, 46. He requested a hearing. IAF, Tab 5. ¶3 The appellant subsequently added a claim that his nonselection for the positions was discriminatory based on his military service and therefore a 3 violation of his rights under USERRA, and he also requested a hearing on this claim.2 IAF, Tabs 30 at 5, 42 at 4-5. ¶4 The administrative judge found that it appeared that the appellant had established the Board’s jurisdiction over both his VEOA and USERRA appeals , IAF, Tab 63 , although she subsequently found that the Board lacked jurisdiction over the appellant’s V EOA claim regarding the GS -15 position because, as to that selection, he did not exhaust his administrative remedy with the Department of Labor (DOL) , IAF, Tab 132 at 2 n.1. Based upon the parties’ submissions, IAF, Tabs 98-100, 102 -05, 109, 111, the admi nistrative judge found that the appellant did not show that the agency violated his veterans’ preference rights under VEOA by obstructing his right to compete for the GS-14 position because , as a current employee, he was not entitled to veterans ’ preferenc e for a position filled under the agency’s merit promotion process , IAF, Tab 114 at 4 -5. Therefore, the administrative judge denied the appellant ’s request for corrective action as to that matter, and indicated that the requested hearing would be confined to his USERRA claim. Coats v. U.S. Postal Service , 111 M.S.P.R. 268, ¶ 13 (2009) (finding that an appellant does not have an u nconditional right under VEOA to a hearing before the Board, and the Board may dispose of a VEOA appeal on the merits without a hearing); IAF, Tab 114 at 5. ¶5 Thereafter, the administra tive judge issued an initial decision in which she repeated her findings that the appellant did not sh ow that he was entitled to corrective action under VEOA as to the GS -14 position, IAF, Tab 148, Initial Decision (ID) at 4-7, and that his VEOA claim rega rding the GS -15 position was 2 In addition, the appellant claimed during adjudication that the agency’s failure to select him for the GS -14 position was retaliatory based on his whistleblowing activit y and therefore violated the Whistleblower Pro tection Act and the Whistleblower Protection Enhancement Act. IAF, Tab 42. The administrative judge docketed this matter as a separate individu al right of action (IRA) appeal, IAF, Tab 63, which she subsequently dismi ssed for lack of jurisdiction, Fair v . Department of Defense , MSPB Docket No. DC -1221 -16-0139 -W-1, Initial Decision (Oct. 18, 2016). The appellant’s petition for review of that decision is currently pending before the Board. 4 dismissed for lack of jurisdiction. ID at 7. As to the appellant’s USERRA claim, the administrative judge concluded that the appellant had not shown that his military service was a substantial or motivating factor in his nons election for either position, and that, in any event, the agency had established by preponderant evidence that its decisions regarding the selections for the GS -14 and GS -15 positions were based on legitimate considerations . ID at 8 -21. Therefore , she denied the appellant’s request for corrective action under USERRA. ID at 23. ¶6 The appellant has filed a petition for review, Petition fo r Review (PFR) File, Tab 2, the agency has responded in opposition, PFR File, Tab 4, and the appellant has replied, PFR File, Tab 5. ANALYSIS The appellant has not shown that the administrative judge erred in her findings regarding his VEOA appeal. ¶7 To prevail in a VEOA appeal, the appellant must establish , inter alia, that the agency violated his rights under a statute or regulation relating to veterans’ preference. Goodin v. Department of the Army , 123 M.S.P.R. 316, ¶ 8 (2016). The admin istrative judge found that the agency advertised the GS-14 position to be filled under merit promotion, as it was open only to agency employees, VEOA and Interagency Caree r Transition Assistance Program applicants , ID at 5; IAF, Tab 65 at 31 ; that the appellant was rated as qualified and remained so, even after the agency raised the cut -off score to expedite the selection, IAF, Tab 65 at 46-47; that he was 1 of 10 candidates who was still under consideration after the r ésumés were reviewed, IAF, Tab 64 at 56; that , following interviews, the panel recommended the four top candidates to the selecting official , id. at 28; but that th e appellant was ranked seventh, id. The administrative judge further found that the appellant did not show that the agency vi olated his veterans ’ preference rights by not allowing him to compete for the position because , as a current employee , he is not entitled to veterans’ preference in the merit promotion process. ID at 5 -7 (citing Brown v. Department of Veterans Affairs , 247 F.3d 5 1222 , 1224 -25 (Fed. Cir. 2001) ); see Kerner v. Department of the Interior , 778 F.3d 1336 , 1338 -39 (Fed. Cir. 2015) (holding that current Federal employees who are preference eligibles or veterans as described in 5 U.S.C. § 3304(f)(1) are not entitled to corrective action on the basis that they were denied an opportunity to compete for a vacant position for which an agency accepts applications from individuals outside its own workforce under merit promotion procedures ). Accordingly, the administrative judge denied the appellant ’s request for correctiv e action in connection with the GS -14 selection. ID at 7. The appellant has not challenged this finding on review and we discern no basis upon which to disturb it. ¶8 On rev iew, the appellant argues that the administrative judge erred in finding that he did not exhaust his remedy before DOL . PFR File, Tab 2 at 14. For an appellant in a VEOA appeal to establish that he exhausted his remedy before DOL, he must show either tha t he received written notification of the results of DOL’s investigation of his complaint, or, if DOL was unable to resolve the complaint within 60 days, that he provided written notification to DOL of his intention to bring a Board appeal. Burroughs v. D epartment of the Army , 116 M.S.P.R. 292 , ¶ 10 (2011). The administrative judge found that the appellant failed to establish exhau stion as to the selection for the GS-15 position . ID at 7. In support of his claim that he did establish exhaustion, the appellant points to correspondence he received from DOL, PFR File, Tab 2 at 14 , but two of the se documents do not constitute notification of the results of DOL’s investigation, IAF, Tab 32 at 4 , Tab 36 at 6 . While the other document does constitute such notification, it specifically refers to the appellant ’s nonselection for the GS -14, not the GS -15, position. IAF, Tab 41 at 6. Therefore, we find that the appellant has not established that the administrative judge erred in her findings regarding exhaustion. 6 The appellant has not shown error in the administrative judge’s findings that he did not establish his entitle ment to corrective action in connection with his USERRA appeal. ¶9 In a USERRA appeal, the appellant must prove by preponderant evidence that his military status was a motivating or substantial factor in the agency’s action. Dale v. Department of Veterans Affai rs, 102 M.S.P.R. 646 , ¶ 16 (2006). Here, t he administrative judge considered the testimony of the members of the résumé and interview panels to the effect that the candidates’ veterans’ status itself was not considered as either a positive or a negative factor, although particular military experience was viewed favorably. ID at 8 -16. In addition, t he administrative judge considered the interview panel witnesses’ testimony regarding how the various candidates performed during that part of the hiring process . ID at 8 -17. The administrative judge also considered the appellant ’s testimony, including his claim that he was to ld that a member of the interview panel for the GS -14 position was biased against him, in part because of his military service . ID at 16 -17. The administrative judge thus found that there was conflicting evidence concerning whether the appellant was not selected for the positions because of his military obligations. ID at 17. However, a fter weighing the witnesses’ credibility, Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458 (1987); ID at 17 -21, the administrative judge concluded that the appellant failed to establish that his military ser vice was a motivating or substantial factor in the agency’s decisions not to select him, but, rather, that the testimonial and documentary evidence showed that the agency found that other applicants were more qualified for the positions and performed bette r during the interview process , ID at 17, 21. Accordingly, the administrative judge denied the appellant’s request for corrective action. ID at 21. ¶10 On review, the appellant challenges a number of the administrative judge’s witness rulings. Specifically, the appellant argues that the administrative judge erred in denying his request for six witnesses . PFR File, Tab 2 at 2-5, 8. The 7 record reflects that, in her hearing order of March 1, 2016, the administrative judge ordered the parties to file their pre hearing submissions by May 24, 2016, including their witness lists. IAF, Tab 90. The appellant submitted his witness list on May 25, 2016, IAF, Tab 127 at 39 -42, and supplemented it on May 26, 2016, IAF, Tab 130. Although neither the appellant nor his r epresentative appeared for the prehearing conference, the administrative judge made witness ruling s, noting that the appellant’s pleadings in this matter had been received after the filing deadline. IAF, Tab 132 at 5 n.2. With the exception of the appell ant himself, the administrative judge considered but disallowed all of his requested witnesses on the basis that their anticipated testimony was “completely unrelated to [the appellant’s] USERRA claim.” Id. at 5 n.3. ¶11 It is well established that an adminis trative judge has wide discretion under 5 C.F.R. § 1201.41 (b)(8), (10) to exclude witnesses where it has not been shown that their testimony would be relevant, material, and nonrepetitious. Franco v. U.S. Postal Service , 27 M.S.P.R. 322 , 325 (1985). According to the appellant, D.M. was the appellant’s super visor in Afghanistan and would have testified that he had nominated the appellant for an award , IAF, Tab 127 at 39 ; R.O. wrote the position description for the GS -14 position and allegedly assisted C.R. , one of the selectees, in becoming eligible for the p osition , id.; K.M. drafted a policy memorandum concerning the selection of the GS -14 positon and was the selecting official , id.; J.F. would have testified to an email he transferred that “besmirched” the appellant and also was submitted to the Chairman of the interview panel for the GS -14 position , id.; and C.B. , the appellant’s equal employment opportunity (EEO) counselor , would have testified to conversations he had with the appellant regarding the GS -14 and GS -15 positions, IAF, Tab 130 at 4 -5. As no ted, USERRA only provides the Board with the authority to determine whether the 8 appellant’s military service was a motivating factor in the agency’s decision.3 Wooten v. Department of Veterans Affairs , 102 M.S.P.R. 131 , ¶ 13 (2006). The appellant did no t below, nor has he suggest ed on review, that any of these witnesses would have provide d testimony relevant to the issue of whether , in the nonselecti ons, the agency discriminated against him based on his military service. On that basis, we find that the administrative judge did not abuse her discretion in denying these witnesses. Franco , 27 M.S.P.R. at 325. ¶12 The appellant also argues on review that the administrative judge abused her discretion in not allowing him to pursue certain issues on cross -examination. For example, he contends that the administrative judge precluded him from examining a member of the interview panel for the GS -15 position who was also the Chairman of the interview panel for the GS -14 position, as to a conversation he had with the appellant’s EEO counselor. Hearing Transcript (HT) at 22 -24 (testimony of a member of the interview panel ). According to the appellant, the precluded testimony would have shown that the witness was predisposed against the appellant. PFR File, Tab 2 at 2 -3. To the extent that the witness had such a predisposition, t he appellant has not sho wn, nor even suggested, that it was because of the appellant’s military service. Because that is the dispositive issue in this case, the appellant has not established that the administrative judge abused her discretion in not allowing him to pu rsue that matter. Franco , 27 M.S.P.R. at 325. Similarly, the appellant argues that the administrative judge did not allow him to question either that witness or a member of the r ésumé panel for the GS -14 position on the issues of alleged bias, conflict o f interest, and violation of ethics laws . The appellant also argue s generally that he was improperly precluded from presenting evidence that, in connection with these two selections, the agency violated the merit syst em principles . PFR File, Tab 2 at 3. The appellant has not shown, or even suggested, that any of these issues bears on his military status 3 To the extent that the appellant argues on review that the admini strative judge erred in only allowing evidence on this issue, PFR File, Tab 2 at 4, he has not shown error. 9 claim, Dale , 102 M.S.P.R. 646 , ¶ 18, and therefore the Board lacks jurisdiction to consider them. As such, we find that the administrative judge did not abuse her discretion in precluding such testimony. Franco , 27 M.S.P.R. at 325. The appellant has not shown that the administrative judge erred or otherwise abused her discretion as to her other rulings. ¶13 The appellant argues that the administrative judge erred in denying his motion for her recusal. PFR File, Tab 2 at 11 ; HT at 5 (ruling of the administrative judge) . The day before t he hearing, the appellant filed an emergency motion seeking the administrative judge’s recusal for judicial bias, judicial retaliation, judicial conflict of interest , and conspiracy to sabotage the appellant’s affirmative defenses. IAF, Tab 144. In the m otion, t he appellant challenged the administrative judge’s summary of the prehearing conference , at which neither the appellant nor his representative was in attendance , IAF, Tab 132, and a rgued that the administrative judge erred in failing to consider his “affirmative defenses” consisting of deprivation of his right to compete, deprivation of his right to an impartial selection panel , the violation of various prohibited personnel practices and merit system principles, and her alleged failure to adjudica te many of his motions, IAF, Tab 144. The allegation of bias thus appears to be based only on rulings made during this proceeding. An administrative judge’ s case -related rulings, even if erroneous, do not establish bias sufficient to warrant recusal. King v. Department of the Army , 84 M.S.P.R. 235, ¶ 6 (1999); see also Oliver v. Department of Transportation , 1 M.S.P.R. 382 , 386 (1980) (explaining that, in making a claim of bias or prejudice against an administrative judge, a party must overcome the presumption of honesty and integrity that accompanies administrative adjudicators). Therefore , we find that the appellant has not shown that the administrative judge erred in denying his motion for recusal. Diefenderfer v. Department of Transportation , 108 M.S.P.R. 651, 29 n.7 (2008). 10 ¶14 Next , the appellant challenges on review the administrative judge’s rejection of his request that his representative be referred to by the title of “administrative law judge ” and that his company name be i dentified . PFR File, Tab 2 at 12 ; IAF, Tab 93 . The administrative judge granted t he motion in part, only as to the i dentification of the appel lant’s representative’s company , IAF, Tab 96, thoroughly explaining her reasons for her decision, id. at 2 -3. The appellant did not object to the ruling. His failure to do so then precludes his doing so now on petition for review. Miller v. U.S. Postal Service , 117 M.S.P.R. 557, ¶¶ 7-8 (2012). ¶15 The appellant also argues on review that the administrative judge erred in not joining his IRA appeal with this appeal. PFR File, Tab 2 at 13. After the appellant noted his IRA appeal, IAF, Tab 42, t he administrative judge stated that it would be docketed and adjudicated separately. IAF, Tab 63. Although t he appellant continued to file pleadings in this appeal that rel ated to his whistleblower claim , IAF, Tabs 68, 82 -84, he did not specifically object to the administrative judge’s ruling. His failure to do so then precludes his doing so now on petition for review. Miller , 117 M.S.P.R. 557, ¶¶ 7-8. ¶16 Finally, t he appellant argues on review that the administrative judge abused her discretion when, on December 1, 2015, she granted the agency’s motion to suspend the case the day after its filing of November 30, 2015 , PFR File, Tab 2 at 14, and when she failed to rule on his motion for clarification of th e administrative ju dge’s order, id. at 14 -15. However , no such pleadings were filed in the instant case on or around th e dates cited. To the extent th at th e motion s and the ruling occurred during the adjudication of the appellant’s IRA appeal, the appellant’s challen ge to them does not bear on this case . 11 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 do es not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, y ou must submit your petition to the court at the following address: 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. 12 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this 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 13 to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/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 case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 14 disposition of allegations of a prohibited p ersonnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or a ny court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained 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 . 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appea ls for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 15 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/Cour tWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	FAIR_FREDERICK_DC_3330_14_0296_I_1_FINAL_ORDER_1972586.pdf	2022-10-26	null	DC-3330	NP
3,992	https://www.mspb.gov/decisions/nonprecedential/FAIR_FREDERICK_DC_1221_16_0139_W_1_FINAL_ORDER_1972605.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD FREDERICK FAIR, Appellant, v. DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER DC-1221 -16-0139 -W-1 DATE: October 26, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Frederick Fair , Alexandria, Virginia, pro se. Michael J. Buxton and William R. Kraus , Alexandria, Virginia, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORD ER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For the reasons set forth below, we DISMISS the petition for review as untimely filed without g ood 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 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 administrative judge dismissed the appellant’s IRA appeal for lack of jurisdiction b y initial decision dated October 18, 2016. Initial Appeal File, Tab 24, Initial Decision (ID) at 1, 7. The administrative judge informed the parties that her decision would become a final decision of the Board on November 22, 2016, unless either party filed a petition for revie w by that date . ID at 7. ¶3 On December 2, 2016, the Board received the appellant’s petition for review, sent by facsimile, challenging the initial decision.2 Petition for Review (PFR) File, Tab 1. The Clerk of the Board issued a notice stating that the petition was untimely because it was not postmarked or received by the Board on or before November 22, 2016, and affording the appellant the opportunity to file a motion , supported by a statement signed under penalty of perjury or an affidavit, showing that the petition was timely or that the time limit should be waived for good cause. PFR File, Tab 2. The appellant filed a Motion for Extension of Time to File a Petition for Review, “sworn to under penalty of perjury.” PFR File, Tab 3. The agency filed a response to the petition for review, arguing, inter alia, that it should be dismissed as untimely filed. PFR File, Tab 4. ANALYSIS ¶4 The Board’s regulation governing the time for filing a petition for review states as follows: Any petition for review must be filed within 35 days after the date of issuance of the initial decision or, if the petitioner shows that the initial decision was received more than 5 days after the date of issuance, within 30 days after the date the petitione r received the initial decision . . . If the petitioner is represented, the 30 -day time 2 The petition for review was filed by the appellant’s representative, who represented him below. Six months later, after the close of the record on review, the representative withdrew his appearanc e. Petition for Review ( PFR ) File, Tab 5. 3 period begins to run upon receipt of the initial decision by either the representative or the petitioner, whichever comes first. 5 C.F.R. § 1201.114 (e). The appellant does not allege that he received the initial decision more than 5 days after its issuance date. As he did not file his submission until December 2, 2016, it was filed 10 days late. ¶5 The Board will waive its ti me limit only upon a showing of good cause for the delay in filing. Washington v. Department of the Navy , 101 M.S.P.R. 258 , ¶ 12 (2006). To establish good cause for an untimely filing, the appellant must show that he exercised due diligence or ordinary prudence under the particular circumstances of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184 (1980). The Board will consider the length of the delay, the reasonableness of the appellant’s excuse and h is showing of due diligence, whether he is proceedin g pro se, and whether he has presented evidence of circumstances beyond h is control that affected h is ability to comply with the time limit or of unavoidable casualty or misf ortune that prevented h im from timely filing h is petition for review. Wyeroski v. Department of Transportation , 106 M.S.P.R. 7, ¶ 7, aff’d , 253 F. App’x 950 (Fed. Cir. 2007 ). ¶6 Absent other factors showing g ood cause, the Board has declined to excuse even delays that are not particularly lengthy. See, e.g. , Melendez v. Department of Homeland Security , 112 M.S.P.R. 51 , ¶ 16 (2009) (declining to waive the filing deadline for a 3 -day delay). The appellant was not proceeding pro se and has presented no evidence of circumstances beyond his control that affected his ability to comply with the time limits or of unavoidable casualty or misfortune that prevented him from timely filing his petition for review . In his motion for an extension, the appellant ’s then -representative states that he became sick on November 23, 2016, the date he states the petition for review was due. PFR File, Tab 3. In fact, as noted, the petition for review was actually due by November 22, 20 16. ID at 7. Therefore , to the ext ent the then -representative was ill after the due date, any such illness was of no consequence because the filing 4 date already had passed. The representative also claims that, because of his continued discomfort , he had difficulty locat ing the Board’s facsimile number, and so he “waited” until November 27, 2016, also after the filing deadline, to email the petition and that, after being advised that the Board does not accept such pleadings,3 he faxed the petition for review on December 3, 2016.4 PFR File, Tab 3. The appellant ’s then -representative has not explained when, during the 30 -day filing period, he completed work on the petition for review . In any event, he did not exercise due diligence in waiting to file the petition until after the filing deadline had passed . ¶7 In sum, we find that the appellant has failed to show that he exhibited due diligence or ordinary prudence in filing his petition for review . Accordingly, we find no good cause for waiving the filing deadline and dismiss the petition for review as untimely filed. ¶8 This is the final order of the Merit Systems Protection Board concerning the timeliness of the appellant’s petition for review. The initial decision will remain the final decision of the Board regarding the dismissal o f the appellant’s IRA appeal for lack of jurisdiction. NOTICE OF APPEAL RIG HTS5 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By statute, the nature of your claims determines the time limit for seeking 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 3 The Board’s regulations clearly provide that filings must be filed by commercial or personal delivery, by facsimile, by mail, or by electronic filing. 5 C.F.R. § 1201.114 (d). 4 As noted, the Board received the faxed petition on December 2, 2016. 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 Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of ho w courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Fail ure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have qu estions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washi ngton, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 6 http://www.mspb.gov/prob ono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your rep resentative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any req uirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, 7 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.6 The court of appeals must receive your 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB 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. 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 court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appel lants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http:/ /www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept r epresentation in a given case. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 9 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	FAIR_FREDERICK_DC_1221_16_0139_W_1_FINAL_ORDER_1972605.pdf	2022-10-26	null	DC-1221	NP
3,993	https://www.mspb.gov/decisions/nonprecedential/ASKEW_FLORA_M_AT_0353_16_0757_I_1_REMAND_ORDER_1972176.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD FLORA M. ASKEW, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER AT-0353 -16-0757 -I-1 DATE: October 25, 2022 THIS ORDER IS NONPRECEDENTIAL1 Flora M. Askew , Atlanta, Georgia, pro se. W. Randle Smith , Esquire, Atlanta , Georgia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member REMAND ORDER ¶1 The appellant has f iled a petition for review of the initial decision, which dismissed her appeal for lack of jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition for review , VACATE the initial decision, and 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or 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 the case to the Atlanta Regiona l Office for further adjudication in accordance with this Remand Order. BACKGROUND ¶2 The appellant was hired by the agency in May 1980 and suffered an injury to her shoulder and arm in September 1991. Initial Appeal File (IAF), Tab 11 at 16, 47, Tab 13 at 24 . Her physician determined in March 1996 that her injury was permanent . IAF, Tab 11 at 47 . ¶3 In September 2010, a s part of its National Reassessment Process, the agency searched for “operationally necessary tasks” within the appellant’ s medical rest rictions . IAF, Tab 7 at 2-3, Tab 11 at 29 -45. However, the search was unsuccessful. IAF, Tab 7 at 2 -3. Prior to this search, the appellant was working as a Modified Distribution Clerk. IAF, Tab 1 at 1, Tab 11 at 27, Tab 13 at 24. On May 19, 2011, the agency informed the appellant that it was unable to identify necessary tasks within her medical restrictions and that she should therefore not report for duty. IAF, Tab 11 at 24. The notice letter did not advise the appellant of her Board appeal rights. ¶4 The appellant filed two grievance s regarding the agency’s failure to restore her to work. IAF, Tab 1 at 5 -6, Tab 13 at 8-10. By notice dated November 9, 2011 , the agency directed her to return to work. IAF, Tab 1 at 5, Tab 11 at 22. It appears that she resumed work, at least part time, on November 14, 2011 . IAF, Tab 11 at 48, 76-93. Effective January 14, 2012, she was awarded a position on which she bid. IAF, Tab 13 at 32. The following month , the agency and the union settled the appellant’s grie vances. Id. at 7, 35. ¶5 In August 2016, the appellant filed a Board appeal alleging that the agency failed to restore her to duty in 2011. IAF, Tab 1. Without holding the requested hearing, the administrative judge issued an initial decision dismiss ing the appeal because she found that the grievance settlement agreements divested the Board of jurisdiction over the underlying matter. IAF, Tab 15, Initial Decision (ID) at 1 -4. 3 ¶6 The appellant has filed a petition for review, the agency has filed a response, a nd the appellant has filed a reply to the response. Petition for Review (PFR ) File, Tabs 1, 3 ‑4.2 DISCUSSION OF ARGUME NTS ON REVIEW The grievance settlement s do not contain an enforceable waiver of Board appeal rights. ¶7 The appellant appears to dispute the administrative judge’s finding that her claim is moot. PFR File, Tab 1 at 3, 5. To have an enforceable contract, there must be consideration, i.e., a performance or a return promise that must be bargained for and does not involve performance of a preexisting duty. Black v. Department of Transportation , 116 M.S.P.R. 87 , ¶ 17 (2011); see Thompson v. Department of the Treasury , 100 M.S.P.R. 545 , ¶ 9 (2005) (declining to enforce a waiver of Board appeal rights signed by an empl oyee in connection with a position that she already occupied, due to the lack of consideration). Thus, in the absence of such consideration, the Board has declined to enforce an employee’s waiver of her appeal rights. Black , 116 M.S.P.R. 87 , ¶ 18. ¶8 The settlement agreements resolving the appellant’s grievances are dated February 22, 2012. IAF, Tab 13 at 7, 35. One grievance was set tled in the following manner: “[t]he grievant has received a bid assignment in Mail Recovery therefore this grievance is a moot issue.” Id. at 7. The other grievance was settled in the following manner: “[t]he employee has a bid in Mail Recovery.” Id. at 35. 2 The agency submitted its response on November 10, 2016, and stated that it would send a copy of its submission to the appellant by the next business day. PFR File, Tab 3 at 6. Accordingly, any reply to the respons e had to be filed by November 21, 2016. PFR File, Tab 2 at 1. The appellant’s reply is postmarked November 22, 2016. PFR File, Tab 4 at 8; see 5 C.F.R. § 1201.4 (i), ( l) (explaining that the date of service by mail is determined by the postmark date). Because it was untimely filed with no good cause shown, we need not consider it. Doe v. Pension Benefit Guaranty Corporation , 117 M.S.P.R. 579 , ¶ 18 n.4 (2012); 5 C.F.R. § 1201.114 (e), (g) . Nonetheless, we have reviewed the reply and determined that it does not affect the outcome of this appeal. 4 ¶9 The only referenced consideration in these agreements is the appellant’s bid assignment in Mail Recovery. However, she was awarded this assignment on January 14, 2012, before the settlements were executed . IAF, Tab 11 at 20, Tab 13 at 32. Acco rdingly, as she appears to argue on review, her bid assignment was the result of her exercising her bidding rights, and the agency thus had a preexisting obligation to place her in the position. PFR File, Tab 1 at 5. We therefore decline to enforce the g rievance settlement agreement s. The appellant has nonfrivolously alleged that the Board has jurisdiction over her restoration claim. ¶10 To establish jurisdiction in a denial of restoration appeal and obtain a hearing on the merits, the appellant is required t o make nonfrivolous allegations that: (1) she was absent from her position due to a compensable injury; (2) she recovered sufficiently to return to duty on a part -time basis, or to return to work in a position with less demanding physical requirements tha n those previously required of her; (3) the agency denied her request for restoration; and (4) the agency’s denial was arbitrary and capricious.3 Clark v. U.S. Postal Service , 123 M.S.P.R. 466 , ¶ 5 (2016), aff’d per curiam , 679 F. App’x 1006 (Fed. Cir. 2017) , and overruled on other grounds by Cronin v. U.S. Postal Service , 2022 MSPB 13 , ¶ 20 n.11. ¶11 As of May 19, 2011, the appellant was working . IAF, Tab 11 at 27 -28, 48-50. That day , the agency advised her that it had completed a search for necessary tasks within her medical restrictions “within your facility and throughout the Local Commuting Area (LCA) within the District boundaries.” Id. at 24. However, the agency told her that it had located no such work, and therefore it advised her that she would need to request leave. Id. The appellant 3 The appellant is required only to nonfrivolous ly allege jurisdiction, as opposed to proving jurisdiction by preponderant evidence, because she fi led this appeal after March 30, 2015. Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365 , ¶ 10 (2016) ; 5 C.F.R. § 1201.57 (a)(4), (b) . 5 then began a period of leave, which included periods designated as “OWCP.”4 Id. at 48-69. Accordingly, we find that the appellant has made nonfrivolous allegations, as supported by the record, satisfying the first three jurisdictional criteria. Sanchez v. U.S. Postal Service , 114 M.S.P.R. 345 , ¶¶ 11-12 (2010). ¶12 Regarding the fourth jurisdictional criterion, evidence that the agency failed to search the local commuting area, as required by 5 C.F.R. § 353.301 (d), would constitute a nonfrivolous allegation that the agency acted arbitrarily and capriciously in denying restoration. Rodriguez -Moreno v. U.S. Postal Service , 115 M.S.P.R. 103 , ¶ 17 (2010). The “local commuting area is the geographic area in which an individual lives and can reasonably be expected to travel back an d forth daily ” to her usual duty station. Id., ¶ 13. The question of what constitutes a local commuting area is one of fact. Id.5 ¶13 Here, the agency’s statement that it completed a search “throughout the Local Commuting Area . . . within the District boun daries” suggests that the local commuting area may expand beyond those boundaries. IAF, Tab 11 at 24. Because the agency’s search was apparently limited to a single district, whether the agency searched the entire commuting area remains an unanswered que stion 4 A compensable injury is defined as one that is accepted by the Office of Workers’ Compensation Programs (OWCP) as job -related and for which medical or monetary benefits are payabl e from the Employees’ Compensation Fund. Hamilton v. U.S. Postal Service , 123 M.S.P.R. 404 , ¶ 14 (2016). 5 While this appea l was pending on review, the Board issued a decision clarifying the standard for determining whether a denial of restoration following a partial recovery was arbitrary and capricious. Cronin , 2022 MSPB 13 . The Board in Cronin held that, although agencies may undertake restoration efforts beyond th e minimum effort requir ed by the Office of Personnel Management under 5 C.F.R. § 353.301 (d), an agency’s failure to comply with self -imposed obligations, such as those provided in the agency’s Employee and Labo r Relations Manual, cannot itself constitute a violation of 5 C.F.R. § 353.301 (d). Cronin , 2022 MSPB 13 , ¶ 20. Rather, as explained in Cronin , the issue before the Board is limited to whether the agency failed to comply with the minimum requirement of 5 C.F.R. § 353.301 (d), i.e., to search within the local commuting area for vacant positions to which it can restore a partially recovered employee and consider him for any such vacancies. Cronin , 2022 MSPB 13 , ¶ 20 (citing Sanchez , 114 M.S.P.R. 345 , ¶ 12). 6 of material fact. Sanchez , 114 M.S.P.R. 345 , ¶¶ 14, 16-17. We find that the appellant has met her jurisdictional burden , which , assuming her appeal is timely filed, entitles her to adjudication on the merits. Id. Because the Board has jurisdiction to consider the merits of the appeal, the Board also has jurisdiction to consider the appellant’s disability discrimination cla im. IAF, Tab 1 at 2; Sanchez , 114 M.S.P.R. 345 , ¶ 14 ; see 5 C.F.R . § 353.301 (d) (requiring agencies to treat partially recovered employees “substantially the same as other handicapped individuals under the Rehabilitation Act of 1973 , as amended”).6 ¶14 On remand, the administrative judge first should advise the appellant of the timeliness issue and afford the parties the opportunity to submit furt her evidence and argument on that matter. See Sanchez , 114 M.S.P.R. 345 , ¶¶ 22-24 (discussing the appellant’s timeliness burden in a restoration case when it was not apparent the agency not ified her of her appeal rights); 5 C.F.R. § 353.104 (requiring an agency denying restoration to provide notice of appeal rights, but further requiring an employee to “exercise due diligen ce in ascertaining” those rights regardless of such notice). If the administrative judge determines that the appeal was timely filed , or that there was good cause to waive the filing deadline , she should proceed to adjudicate the merits of the appeal, inc luding holding the appellant’s requested hearing. IAF, Tab 1 at 1. 6 The appellant raised additional matters concerning, among other things, an improper disclosure of her medical information and the compromise of personally identifiable information during a cyber intrusion. IAF, Tab 8 at 1; PFR File, Tab 1 at 3, 6. At least some of these issues appear to be outside of the Board’s jurisdiction. See Young v. U.S. Postal Service , 113 M.S.P.R. 609 , ¶ 40 (2010) (observing that the Board does not have jurisdiction to adjudicate Privacy Act claims). On remand, the administrative judge only should adjudicate those claims over which the Board has jurisdiction. 7 ORDER ¶15 For the reasons discussed above, we remand this case to the Board’s Atlanta Regional Office for further adjudication in accordance with this Remand Order. FOR THE BOARD: Washingt on, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	ASKEW_FLORA_M_AT_0353_16_0757_I_1_REMAND_ORDER_1972176.pdf	2022-10-25	null	AT-0353	NP
3,994	https://www.mspb.gov/decisions/nonprecedential/DUMEY_LINDA_B_PH_0752_16_0153_I_1_FINAL_ORDER_1972227.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD LINDA B. DUMEY, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER S PH-0752 -16-0153 -I-1 PH-1221 -16-0078 -W-1 DATE: October 25, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Linda B. Dumey , Wells, Maine, pro se. Laura J. Carroll , Saint Albans, Vermont, for the agency. Peter D. Gregory , 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 removal action and denied the appellant’s request 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 corrective action in her individual right of action appeal . On petition for review, the appellant argues that the administrative judge’s fact findings and credibility determinations were incorrect, the administrative judge erred by finding that she failed to prove her affirmative defense of due proc ess violations , the agency and administrative judge erred by failing to consider the Douglas2 factors, and her representative provided her with ineffective assistance of counsel. Generally, we grant petitions such as this one only in the following circums tances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s r ulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, whi ch is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 In reaching this decision, we have not considered the agency’s response to the appellant’s petition for review because i t was un timely filed without a showing of good cause for the delay in filing. 2 In Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 306 (1981), the Boar d set forth 12 factors that should be considered when an agency and an administrative judge evaluate the reasonableness of a disciplinary penalty for a Federal employee. 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 righ ts, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdic tion. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dism issal of your case by your chosen forum. Please read 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 re view your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Fed eral Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 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 information regarding pro bono representation for Merit Systems Prote ction Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of 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 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.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 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 requir ing a signature, 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 20 12. This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 6 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. C ourt of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for M erit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 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 appeal s can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	DUMEY_LINDA_B_PH_0752_16_0153_I_1_FINAL_ORDER_1972227.pdf	2022-10-25	null	S	NP
3,995	https://www.mspb.gov/decisions/nonprecedential/DOE_JOHN_DC_0752_16_0587_I_1_FINAL_ORDER_1972303.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JOHN DOE, Appellant, v. AGENCY FOR INTERNATI ONAL DEVELOPMENT, Agency. DOCKET NUMBER DC-0752 -16-0587 -I-1 DATE: October 25, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 John Doe , pro se. Sara Ryan , 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 require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 erroneous interpretation of statute or regulation or the erroneou s application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error af fected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decis ion. 5 C.F.R. § 1201.113 (b). ¶2 As the administrative judge found in the ini tial decision, the agency terminated the appellant from her Foreign Service Limited Officer position effective August 19, 2015 . Initial Appeal File (IAF), Tab 6, Initial Decision (ID) at 1. After receiving a final agency decision on her equal employment opportunity (EEO) complaint , the appellant filed a Board appeal and requested a hearing. ID at 2; IAF, Tab 1. She made allegations of harassment, delays in the EEO process, and retaliation for EEO activity. IAF, Tab 1 at 5. The administrative judge inf ormed the appellant that the Board may not have jurisdiction over her appeal because she was a member of the Foreign Service. IAF, Tab 5. He issued an order directing her to show cause why the appeal should not be dismissed for lack of jurisdiction, but she did not respond. Id. ¶3 Without holding the requested hearing, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. ID at 2, 4 . Specifically, he found that , pursuant to 5 U.S.C. § 7511 (b)(6), the Board lacks the authority to review her termination because t he appellant was a member of the Foreign Service. ID at 2-3. 3 ¶4 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. She does not dispute that the Board lacks jurisdiction over her appeal and admits that the appeal should not have been filed. Id. Instead, she requests that the Board not issue a decision, citing privacy concerns. Id. She includes a letter from the agency, which she purportedly did not receive until after issuance of the initial decision, explaining that the agency inadvertently included Board appeal rights in the fi nal agency decision on her EEO complaint. Id. at 8.2 The agency has not filed a response. ¶5 For the reasons contained in the initial decision, we agree with the administrative judge’s finding that the Board lacks jurisdiction over the appeal because the ap pellant was a member of the Foreign Service . ID at 2-3; see Ang v. Department of State , 103 M.S.P.R. 324 , ¶¶ 8-9 (2006) (finding that the appellant failed to establish jurisdiction over his appeal under 5 U.S.C. chapter 75 because he was a member of the Foreign Service ). Moreover, w e deny the appellant’s privacy -related request because her identity has been protected by allowing her to proceed anonymously as John Doe.3 2 Assuming that the agency letter was unavailable prior to the close of the record below despite the appellant’s due diligence , we find that it does not affect the outcome of the appeal. PFR File, T ab 1 at 4, 7; see Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980) (stating that the Board generally will not consider evidence submitt ed for the first time with the petition for review absent a showing that it was unavailable before the record was closed despite the party’s due diligence); see also Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980) ( stating that the Board generally will not grant a petition for review based on new evidence absent a showing that it is of sufficient weight to warrant an outcome different from that of the initial decision). 3 The Board no longer uses Jane Doe and John Doe, universally using the gen eric “John Doe” for all appeals when anonymity is granted. Doe v. Pension Benefit Guaranty Corporation , 117 M.S.P.R. 579 n.1 (2012). Further, with the exception of the Board’s decision in this matter, which is available on the Boar d’s website, the case file from this appeal is protected by the Privacy Act of 1974 and is not available to the public through e-Appeal Online or the Board’s website. While MSPB’s adjudication records may be requested under the Freedom of Information Act (FOIA), all records are reviewed in accordance with the FOIA and may be withheld from release if warranted by a FOIA exemption. 4 ¶6 Accordingly, we find that the administrative judge properly dismissed the appeal for lack of jurisdiction. NOTICE OF APPEAL RIG HTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will 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 file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 5 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, 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 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 th eir respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal O perations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Emplo yment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Op portunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 7 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited 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.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Fede ral Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are intere sted in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appel lants before the Federal Circuit. The 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 8 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	DOE_JOHN_DC_0752_16_0587_I_1_FINAL_ORDER_1972303.pdf	2022-10-25	null	DC-0752	NP
3,996	https://www.mspb.gov/decisions/nonprecedential/EDWARDS_IRIS_DC_0839_16_0497_I_1_FINAL_ORDER_1971624.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD IRIS EDWARDS, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER DC-0839 -16-0497 -I-1 DATE: October 24, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Iris Edwards , Accokeek, Maryland, 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 denied her request for corrective action under the Federal Erroneous Retirement Coverage Corrections Act (FERCCA) . Generally, we grant petitions such as this one only in the following circumstances: the initial 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 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 findings of material f act; 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 w ere 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 avai lable 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 t he petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, except as MODIFIED to clarify the definition of “creditable civilian service ” for purposes of determining whether an employee is excluded from automatic coverage under the Federal Employees Retirement System (FERS). BACKGROUND ¶2 From November 29, 1982, to August 14, 1985, the appellant was employed in a Federal position cove red by the Civil Service Retirement System (CSRS ). Initial Appeal File (IAF), Tab 4 at 8, 26. From 1986 to 1991, she held a series of seven nonconsecutive temporary appointments with various Federal agencies , most of which lasted between 2 and 4 months , each with breaks of more than 4 days between each appointment . Id. at 8. During her temporary appointments, the appellant wa s placed under Federal Insurance Contrib utions Act coverage only . Id. at 8, 11 -23. On March 23, 1992, the appellant received a career -conditional appointment and was placed under FERS coverage. Id. The appellant disagreed with her retirement plan coverage and sought corrective action under FERCCA . Id. at 6. In a final decision dated March 15, 2016, the Office of Personnel Management (OPM) found that the appellant was properly covered by FERS and denied her request for corrective action. Id. 3 ¶3 The appellant appealed OPM’s final decision to the Board. IAF, Tab 1. After holding the appellant’s requested hearing, the administ rative judge issued an initial decision finding that the appellant was properly placed under FERS coverage when she was rehired in 1992 because she did not have 5 years of prior creditable civilian service that would exclude her from FERS coverage . IAF, Tab 10, Initial Decision (ID). Accordingly, the administrative judge denied the appellant’s request for corrective action under FERCCA and affirmed OPM’s final decision. ID at 4 -5. ¶4 The appellant has filed a petition for review of the initial decision, arg uing that her service in the te mporary positions is creditable, that she meets the 5 -year requirement for exclusion from FERS , and that she should have been placed under CSRS coverage upon her rehire in 1992 . Petition for Review (PFR) File, Tab 1. OPM ha s submitted a response to the appellant’s petition for review, conceding that her service in temporary positions is creditable but maintaining that her total creditable service is still fewer than 5 years. PFR File, Tab 4. ANALYSIS ¶5 An employee who has b een placed under the wrong retirement system for a period of 3 or more years after December 31, 1986, may seek relief under FERCCA and may be entitled to various forms of relief, including a choice of retirement plans . FERCCA, Pub. L. No. 106-265, §§ 200 1-2401, 114 Stat. 762, 770-86 (2000) (codified at 5 U.S.C. § 8331 note ); see Archer v. Office of Personnel Management , 120 M.S .P.R. 68 , ¶ 6 (2013) ; 5 C.F.R. §§ 839.101 (b), 839.2 01. Generally, an employ ee who previously has not been covered by FERS and who is rehired, tra nsferred, or converted after December 31, 1986, is automatically subject to FERS unless she meets the “5-year test .” Office of Personnel Management, CSRS and FE RS Handbook for Personnel and Payroll Offices (Handbook ), Ch. C010 – Coverage, Sections 10A1.1 -2(I), 10A1.3 -4(B), (Apr. 1998), https://www.opm.gov/retirement -services/publications -forms/ 4 csrsfers -handbook/ (last visited Oct. 24 , 2022 ); see 5 U.S.C. § 8402 (b)(2)(A); 5 C.F.R. § 842.104 (c). To satisfy the 5 -year test, an employee must meet one of the following conditions : (1) she had 5 years of creditable civilian s ervice as of December 31, 1986; or (2) she had a break in service of mor e than 3 days ending after 1986 , she had any amount of past coverage under CSRS or the Foreign Service Retirement System, and she had 5 years of creditable civilian servi ce as of the break in service. Handbook , Sections 10A1.1 -2(I), 10A1.3 -4(B). ¶6 Here, the undisputed evidence reflects that the appellant had a total of 4 years, 3 months, and 17 days of Federal service prior to her 1992 appointment.2 IAF, Tab 4 at 8. Because she did not have at least 5 years of prior service at the time of her appointment in 1992 , she cannot satisfy the 5 -year test and, therefore, did not qualify for exclusion from automatic FERS coverage . See 5 U.S.C. § 8402 (b)(2)(A); 5 C.F.R. § 842.104 (c). Accordingly, we agree with the administrative judge’s determination that the appellant was properly placed under FERS coverage upon her rehire in 1992 and that she is not entitled to corrective action under FERC CA. ¶7 Finally, i n the initial decision, the administrative judge found that the appellant was not in CSRS -covered positions during her temporary appointments and, therefore, that those appointments could not be counted toward the 5 -year requirement. ID at 3 -4. For purposes of the 5 -year test, however, “creditable civilian service” can include “all potentially creditable service, such as service performed under another retirement system, which would be creditable if any necessary deposit were made.” Handboo k, Section 10A1.1 -2(A); see 5 U.S.C. § 8402 (b)(2)(A) -(B). Accordingly, we modify the initial decision to clarify that it is not necessary that a particular period of service be covered by CSRS to be 2 Although the appellant contends that her total service prior to 1992 amounts to more than 8 years, IAF, Tab 8 at 3, she does not challenge the accuracy of OPM’s FERCCA Service His tory Worksheet , which sets forth her prior dates of employment and reflects periods of service prior to her 1992 appointment that total 4 years, 3 months, and 17 days . IAF, Tab 4 at 8. 5 creditable civilian service in this context . T he administrative judge’s error , though, does not affect the outcome of this appeal and provides no basis to reverse the initial decision because the appellant cannot satisfy the 5 -year test, even if all of her prior service is found to be “creditable civilian service. ” See Panter v. Department of the Air Forc e, 22 M.S.P.R. 281 , 282 (1984). NOTICE OF APPEAL RIG HTS3 The initial decision, as supplemented by this Final Order, constitutes the Board’ s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary o f 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 fal l 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. 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 Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the 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 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 discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.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 8 (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 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,” whi ch is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 4 The original statutory provision that provided for judicial review of cer tain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 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.g ov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representati on in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/ Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	EDWARDS_IRIS_DC_0839_16_0497_I_1_FINAL_ORDER_1971624.pdf	2022-10-24	null	DC-0839	NP
3,997	https://www.mspb.gov/decisions/nonprecedential/PARKES_JEFFREY_NY_0752_14_0361_I_1_FINAL_ORDER_1971665.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JEFFREY PARKES, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER NY-0752 -14-0361 -I-1 DATE: October 24, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jeffrey Parkes , Williamsville, New York, pro se. J. Douglas Whitaker , Esquire, Omaha, Nebraska, 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 the appellant’s removal. Generally, we grant petitions such as this one only when: the initial decision contains erroneous findings of material fact; the initial dec ision is based on an erroneous interpretation of statute or regulation or 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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 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,2 we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 The agency removed the appellant from his GS-13 Criminal Investigator position based on the following charges: (1) causing a member of the public to fear for his physical safety; (2) misuse of a privately owned weapon that the agency authorized [the appellant] to carry on and off duty; and (3) conduct unbecoming a law enforcement officer. Initial Appeal File (IAF), Tab 8 at 25-26, Tab 10 at 105. Specifically, th e agency charged that the appellant, who was staying at a hotel while he was serving as part of a security detail that was protecting dignitaries attending the United Nations General Assembly , had gotten drunk and lost his room key. A hotel guard accompan ied the appellant to the 2 On review, the appellant filed motions for leave to file additional pleadings. Petition for Review (PFR) File, Tabs 9, 14. In his motions, the appellant sought leave to submit into the record two National Review articles describing his work as a sp ecial agent, a form regarding hearing loss that he contends has long been pending with the agency , and evidence regarding alleged cover ups of activity within the agency. According to the appellant, the articles address the good nature of his character , and the pendency of the form and the alleged cover ups demonstrate illegal actions by the agency . The appellant failed to explain how this additional evidence would warrant a different outcome from the initial decision and we will not disturb the administrative judge’s thorough and well -reasoned findings on the charge and penalty. Accordingly, the appellant’s motion s for leave to submit additional evidence are denied. 3 appellant’s hotel room and opened the door; the appellant refused to show the identification that the guard requested ; and the appellant pulled his private ly owned gun on the guard, who reasonably feared for his safety. IAF, Tab 1 0 at 105. Subsequently, t he appellant was charged with a criminal misdemeanor based on his conduct, and sentenced to 45 days in prison and 3 years of probation . Id. The agency charged that the appellant’s criminal conviction was conduct unbecoming a law enforcement officer. ¶3 The appellant appealed the action, alleging that it constituted discrimination on the basis of disability, namely , alcoholism. IAF, Tab 1. Also, during the proceedings below , the appellant r aised the affirmative defense of harmful procedural error. He alleged that the agency engaged in coercive behavior and committed due process violations when it provided the New York District Attorney’s Offic e wi th false information regarding hi s prior alcohol -related incidents. IAF, Tab 42. Based on the parties’ written submissions,3 the administrative judge found that the agency proved only charges (1) and (3), i.e. causing a member of the public to fear f or his safety and conduct unbecoming a law enforcement officer. IAF, Tab 130, Initial Decision (ID). She also found that the appellant failed to prove his affirmative defenses. ID at 8 -13. Finally, she found that the agency established that discipline promoted the efficiency of the service and that the penalty of removal was within the bounds of reasonableness for the sustained charges. ID at 13 -19. ¶4 In his petition for review, the appellant contends as follows , that: the agency failed to prove charges (1) and (3) by preponderant evidence ; he prove d his affirmative defense of disability discrimination based on alcoholism ; he prove d harmful procedural error because his removal was predetermined and the agency improperly relied on prior incidents of alcohol -related misconduct in deciding to remove him ; and the penalty was too harsh and disparate when 3 Although the a ppellant initially requested a hearing, IAF, Tab 1, he subsequently waived his hearing right, IAF, Tab 101 . 4 compared to the penalty imposed on others for similar misconduct . He also alleges that the administrative judge was biased and erred by not rec using her self. Petition for Review (PFR) File, Tab 1. The agency submitted a response to the appellant’s petition for review.4 PFR File, Tab 4. ANALYSIS The administrative judge correctly found that the agency proved charges (1) and (3). ¶5 Concerning the first ch arge, t he agency submitted a statement from the guard providing that when the appellant pulled his gun , the guard quickly slammed the door and ran away. IAF, Tab 10 at 128. Also, the agency submitted the appellant ’s plea allocution in the criminal case in which he admitted that he placed the guard in reasonable fear of serious physical injury or death by pointing a loaded firearm at his face. IAF, Tab 9 at 100 -02, 105 -07; Tab 10 at 51, 119. Thus, we find that the administrative judge correctly found that the agency proved charge (1) by preponderant evidence. ¶6 The agency also submitted evidence that the appellant was convicted of reckless endangerment related to his pulling a loaded gun on the hot el guard, and that he was sentenced to jail and probation . Through this proof, the agency established that the appellant engaged in conduct that was improper, unsuitable, or detracted from his character or reputation. See Otero v. U.S. Postal Service , 73 M.S.P.R. 198, 202-04 (1997) ( finding that improper conduct m ay support a conduct unbecoming charge). Thus, we agree with the administra tive judge that the agency proved charge (3) by preponderant evidence.5 4 The agency does not challenge the administrative judge’s finding that it failed to prove charge (2) and we see no reason to disturb that finding. 5 The administrative judge also relied on the fact that the appellant did not show that his conviction had been reversed. As noted herein , the administrative judge denied the appellant’s motion for dismissal without prejudice so that he could challenge his conviction. IAF, Tab 68. The administrative judge denied the app ellant’s motion on February 24, 2015. She issu ed the initial decision on July 26, 2016, more than a year 5 The administrative judge correctly determined that the appellant failed to prove his allegation of disability discrimination. ¶7 We find that t he administrative judge also properly found that the appellant failed t o prove his affirmative defense of disability discrimination . As the administrative judge found, even if the appellant established that he was ad dicted to alcohol , and even if he had established that his misconduct was cau sed by or was entirely manifested by his addiction, he still would not have established that his removal constituted disability discrimination. Neither the Rehabilitation Act nor the Americans with Disabilities Act immunizes disabled employees from being disciplined for misconduct in the workplace, provided the agency would impose the same discipline on an employee without a disability. Laniewicz v. Department of Veterans Affairs , 83 M.S.P.R. 477 , ¶ 5 (1999). As t he administrative judge determined, the appellant did not establish that the agency retained nondisabled employees after those employees committed similar offenses. ¶8 The administrative judge’s summary finding that the agency imposed the same discipline on an employee without a disability who committed an offense similar to that committed by the appellant is cl arifie d in the administrative judge’s penalty discussion. See Spithaler v. Office of Personnel Management , 1 M.S.P.R. 587 , 589 (1980) ( stating that an initial decision must identify all material issues of fact and law, summarize the evidence, resolve issues of credibility, and i nclude the administrative judge’ s conclusions of law and his legal reasoning, as well as the authorities on which that reasoning rests). There , the administrative judge identifie d the three employees who the appellant allege d later. The appellant provided no evidence that during that year his conviction had been reversed; nor did he provide evidence that his conviction had been reversed with his petition for re view. To the extent that it may have been error for the administrative judge to rely on the appellant’s failure to show that his conviction h ad been reversed in sustaining c harge (3), we find no evidence that it harmed the appellant’s rights and prov ides no basis for reversal of the initial decision . Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) . 6 were treated less harshly , and properly found that they were not similarly situated to the appellant. ID at 17 -18. ¶9 The first of these employees was suspended for 60 days based on the charge of condu ct unbecoming and inappropriate display or brandishment of a weapon; however, in determining the penalty, the deciding official considered that the employee’s actions were defensive in nature “ following an attack .” ID at 17; IAF, Tab s 47, 64, 110. By com parison, it is undisputed that the appellant’s actions were unpr ovoked. The second of these employees was still under investigation and the agency had not yet determined if it would impose any disciplinary action; in any event , his conduct was not similar to the appellant’s because, as with the first comparator, he had been attacked and was defending himself. ID at 18; IAF, Tab 64 at 162. The third employee also was still under investigation and a decision on whether to take a disciplinary action had not occurred yet . ID at 18; IAF, Tab 108 at 5-6. However, the third employee was located in a different field office than that of the appellant , and the deciding official was not aware of the investigation regarding the third employee when he rendered his d ecision . ID at 18; IAF, Tab 110 at 2 -7. Despite the ongoing investigation, there is no evidence that the agency knowingly intended to treat the appellant differently than the third employee . See Singh v. U.S. Postal Service , 2022 MSPB 15 , ¶ 14.6 Consequently, t he administrative judge properly found that the appellant failed to prove his allegation of discrimination on the basis of disability. See Laniewicz , 83 M.S.P.R. 477 , ¶ 5. 6 Our decision in Singh , issued after the initial decision in this appeal, clarifies that the relevant inquiry for assessing a claim of disparate penalties when weighing th e reasonableness of a penalty is whether the agency knowingly and unjustifiably treated employees who engaged in the same or similar offenses differently. Singh , 2022 MSPB 15, ¶ 14. There is no evidence in the record to indicate that the agency did so in this case. Thus, any subsequent change in the case law does not provide a reason to disturb the conclusions of the initial decision. 7 The administrative judge correctly found that the appellant failed to prove his violation of due process claims. ¶10 As to the appellant’s due process allegation s, w e agree with the administrative judge that the appellant failed to prove that his removal was predetermined by the deciding official. While it is true that the appellant has a due process right to have an unbiased decision maker decide his case, he failed to provide any particular reasons why the agency’s choice of the deciding official here made the risk of unfairness to the appellant “intolerably high. ” Martinez v. Department of Veterans Affairs , 119 M.S.P.R. 37, ¶ 6 (2012) ( finding that a deciding official’s awareness of background information about the appellant, his concurrence in the desirability to take an adverse action, or his predisposition to impose a severe penalty does not disqualify him from serving as a deciding official on due process grounds). ¶11 In addition , the agency pro perly relied on the appellant’s prior incidents of alcohol -related misconduct in its penalty determination even though they were not identified in the notice of proposed removal. As the administrative judge found, the deciding official advised the appellant that he planned to rely on these incidents , and he provided the appellant a copy of the documents regarding these incidents and an opportunity to reply. ID at 3; IAF, Tab 9 at 4 -5. The appellant not only f iled oral and written replies to the proposal letter, ID at 3; IAF, Tab 9 at 127-71, Tab 10 at 20 -31, he also replied again to the additional documents regarding the prior incidents. ID at 3; IAF, Tab 8 at 35 -39. We find no error in the administrative judge’s well -explained legal analysis in the initial decision and her finding that the d eciding official did not engage in ex parte communications that denied the appellant due process. ID at 10 -12. Appl ying t he factors set out by the court in Stone v. Federal Deposit Insurance Corporation , 179 F.3 d 1368 , 1377 (Fed. Cir. 1999), the administrativ e judge found that : (1) the deciding official considered new information and documents that were not included in the proposed removal notice; (2) the agency informed the appellant about all of the 8 information and documents that the deciding official was g oing to consider; (3) the agency eventually provided the additional information and documents to the appellant; and (4) the agency gave the appellant an opportunity to respond before the removal decision was issued. ID at 10 -12; s ee Ward v. U.S. Postal Service , 634 F.3d 1274 (Fed. Cir. 2011) ( finding that an employee must be given notice of any aggravating factors supporting an enhanced penalty a nd an ex parte communication with the deciding official regarding such factors may constitute a due process violation).7 We also agree with the administrative judge’s determination that the deciding official’s review of this additional evidence and inform ation did not constitute harmful error. ID at 12 -13. Accordingly, we agree with the administrative judge’s finding that the agency did not violate the appellant’s due process rights. The administrative judge properly decided that the p enalty of remova l was warranted. ¶12 Regarding the penalty , because not all the charges were sustained, the administrative judge considered carefully whet her the sustained charges merit the penalty of removal. See Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 308 (1981). She properly considered the seriousness of the misconduct, the appellant’s position as a law enforcement of ficer, that the misconduct jeopardized the appellant’s ability to testify as a witness in a ny future criminal prosecution s, and that the appellant’s potential for rehabilitation was diminish ed because of his prior alcohol -related misconduct. ID at 14 -16. Additionally, as explained above, she considered that the appellant was not treated more harshly than other employees who engaged in similar misconduct. ID at 16 -19. We therefore agree 7 The U.S. Court of Appeals for the Federal Circuit’s reasoning rests on the decision of the U.S. Supreme Court in Cleveland Board of Education v. Loudermill , 470 U.S. 532 , 538-39, 546 -48 (1985), which held that a tenured public employee has a constitutionally protected property interest in ongoing public employment and that an agency may not deprive such an employee of his property interest without providing him with due process of law, including the right to advance notice of the charges against him, an explanation of the agency’s evidence, and an opport unity to respond. 9 that the penalty of removal is within the bounds of reasonableness f or the sustained misconduct. The appellant did not establish his allegation that the administrative judge was biased. ¶13 Finally, t he appellant argues that the administrative judge should have recused herself because of her manner during two prehearing conf erences, one on February 2, 2015, and another on February 24, 2015. The appellant asserts that during these conferences the administrative judge berated him and lied to him, and thus she was biased. PFR File, Tab 1. ¶14 In making a claim of bias or prejudi ce against an administrative judge, a party must overcome the presumption of honesty and integrity that accompani es administrative adjudicators. Galloway v. Department of Agriculture , 110 M.S.P.R. 311 , ¶ 13 (2008). Here, t he appellant’ s assertion of bias, based on the admini strative judge’ s allegedly berating him , is insufficient to overcome the presumption of honesty and integrity that accompanies administrative adjudicators. During the two conferences, the administrative judge did counsel the appellant that he must not interrupt her or agency counsel when they wer e speaking. The administrative judge’s actions in this respect did not show bias. Rather, they evidenced appropriate control of the proceedings and did not amount to berating. See Key v. General Services Administration , 60 M.S.P.R. 66 , 68 (1993) (finding that an administrative judge has broad discretion to con trol the proceedings before her) . ¶15 Further, we disagree with the appellant’s claim that the administrative judge lied. During the prehearing conferences, the appellant was seeking a dismissal without prejudice while he appealed his conviction. In the first conference, the administrative judge suggested that she would grant the appellan t’s motion if he retained counsel and filed the criminal appeal. IAF, Tab 65, Prehearing Conference Compact Diskette (statement of the administrative judge ). In the latter conference, however, the administrative judge denied the appellant’s 10 motion over h is representation that he had retained counsel for the criminal appeal, finding that to grant such a motion under the circumstances of this case would be contrary to Board case law. I AF, Tab 68 at 2 . T he fact that an administ rative judge changed her mind and made rulings with which the appellant does not agree does not form a sufficient basis to find that the administrative judge lied or was biased. See, e.g., Caracciolo v. Department of the Treasury , 105 M.S.P.R. 663 , ¶ 14 (2007) .8 To the extent that the administrative judge erred in suggesting in the first conference that she mig ht grant the appellant’s motion, her error was harmless and did not affect the appellant’s substantive rights. Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) ( explaining that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reve rsal of an initial decision). An administrative judge ’s case-related rulings, even if erroneo us, are insufficient to establish bias sufficient to warrant her recusal or disqualification from further involvement in the appeal. See King v. Department of the Army , 84 M.S.P.R. 235 , ¶ 6 (1999). ¶16 Accordingly, we affirm the initial decision. 8 The administrative judge’s denying the appellant’s motion to dismiss without prejudice is consistent with Board case law. An administrative judge may, at her discretion, stay proceedings when the interests of justice seem to require su ch action. See Wallington v. Department of the Treasury , 42 M.S.P.R. 462 , 464 -66 (1989). It is the Board’s policy to stay its proce edings when criminal proceedings involving the same matter are pending. However, the pendency of a judicial appeal of a criminal conviction will not ord inarily result in continuing a stay of Board proceedings. Id. at 465-66. The appropriate standard is whether the interests of justice seem to require such action, after balancing the appellant’s strong interest in postponing Board proceedings until the criminal charge against him is fully resolved against any prejudice to the agency in waiting an indeterm inate amount of time to bring the Board proceedings to a close. Id. The interests of justice in this case did not require a stay in this case until all criminal appeals are exhausted. The appellant did not indicate that the appellate court review of his criminal conviction is de novo rather than on the record, and concurrent Board proceedings will not improperly interfere with the court’s review. 11 NOTICE OF APPEAL RIG HTS9 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following su mmary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which ca ses fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable tim e limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular fo rum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U .S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a peti tion for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 9 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 12 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional inform ation about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that 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 13 to waiver of any requirement of prepayment of fees, cost s, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed thr ough the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receiv e this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Wash ington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5S W12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no cha llenge to the Board’s 14 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.10 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “G uide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit , you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor war rants that any attorney will accept representation in a given case. 10 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of ap peals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower repr isal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 15 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	PARKES_JEFFREY_NY_0752_14_0361_I_1_FINAL_ORDER_1971665.pdf	2022-10-24	null	NY-0752	NP
3,998	https://www.mspb.gov/decisions/nonprecedential/SINCLAIR_JONATHON_M_SF_0752_16_0565_I_1_FINAL_ORDER_1971194.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JONATHON M. SINCLAIR , Appellant, v. DEPARTMENT OF THE IN TERIOR, Agency. DOCKET NUMBER SF-0752 -16-0565 -I-1 DATE: October 21, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jonathon M. Sinclair , Henderson, Nevada, pro se. Shari Mauney , Esquire, Phoenix, Arizona, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member Member Limon rec used himself and did not participate in the adjudication of this appeal. FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such as this o ne only when: the initial decision contains erroneous findings of material 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative jud ge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal arg ument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decisio n, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 On September 7, 2014, the agency used a Veterans Recruitment Appointment (VRA) authority under the Jobs for Veterans Act, Pub. L. No. 107-288, 116 Stat. 2033 (2002), to appoin t the appellant to the excepted -service position of Mail Clerk, GS -0305 -05. Initial Appeal File (IAF), Tab 5 a t 21. On August 9, 2015, the appellant began a new VRA with the agen cy in the excepted -service position of Warehouse Helper, BB -6907 -00. Id. at 17-19. The appointment documentation informed him that he was required to satisfactorily complete a new 2 -year trial period. Id. On June 2, 2016, the agency terminated his appo intment, citing misconduct on May 24 -25, 2016. Id. at 14 -16. ¶3 On June 17, 2016, the appellant filed the instant appeal with the Board. IAF, Tab 1. After issuing an order on jurisdiction informing the appellant of his burdens and reviewing the parties’ re sponses, the administrative judge dismissed the appeal for lack of jurisdiction without holding the requested hearing. IAF, Tab 7, Initial Decision (ID) at 1. 3 ¶4 The appellant has filed a petition for review of the initial decision. Petition for Review (P FR) File, Tab 1. The agency has not file d a response. DISCUSSION OF ARGUME NTS ON REVIEW ¶5 Whether the Board has appellate jurisdiction by statute in a removal or other adverse action depends on whether the appellant is a Federal “employee ” as defined by 5 U.S.C. § 7511 (a)(1) . Smirne v. Department of the Army , 115 M.S.P.R. 51 , ¶ 5 (2010). The appellant asserted below, and the agency did not dispute, that he was a preference -eligible veteran detailed to the Warehouse Helper position from May 14, 2015, until his official appointment to that position on August 9, 2015. IAF, Tab 1 at 1, 8. As a preference eligible in the excepted service, the appellant would need to have completed 1 year of current continuous service in the same or similar positions with the agency in order to have appeal rights before the B oard. 5 U.S.C. § 7511 (a)(1)(B); ID at 5. ¶6 We agree with the administrative judge that the appellant’s service on a detail does not entitle him to the rights of the position to which he was detailed and therefor e cannot be credited toward his completion of 1 year of service in the same or similar positions. ID at 5; see Wafford v. U.S. Postal Service , 34 M.S.P.R. 691 , 693 (1987). We further find that the appellant failed to make a nonfrivolous allegation that his Mail Clerk position was t he “same or similar ” to his Warehouse Helper position in that they did not involve related or comparable work that required the same or similar skills. See Martinez v. Department of Homeland Security , 118 M.S.P.R. 154 , ¶ 9 (2012) (citing Mathis v. U.S. Postal Service , 865 F.2d 232 , 234 (Fed. Cir. 1988) ). The appellant failed to make even a bare assertion that the Mail Clerk and Warehouse Helper positions were the same or similar. IAF, Tabs 1, 6; PFR File, Tab 1. Nor does the record contain any information regarding the dut ies of the positions. Accordingly, the appellant failed to make a nonfrivolous allegation that he was an “employee” with Board appeal rights under 5 U.S.C. chapter 75 . 4 ¶7 On review, t he ap pellant alleges for the first time that his termination was based on p artisan political reasons and /or preappointment reasons. PFR File, Tab 1 at 4-5. As with career or career -conditional employees, individuals who are terminated during the first year of their VRA may appeal to the Board if they contend that they were terminated based on partisan political reasons, their marital status, or for reasons based on conditions arising before their appointment without b eing afforded the procedural due process rights set forth at 5 C.F.R. § 315.805 . LeMaster v. Department of Veterans Affairs , 123 M.S.P.R. 453 , ¶ 2 n.1 (2016) ; 5 C.F.R. § § 307.105 , 315.806 . Although the administrative judge informed the appella nt of the Board’s jurisdiction over such matters , IAF, Tab 3 at 4-5, the appellant failed to make any assertion below that his termin ation was based on such reasons, IAF, Tab s 1, 6. Because the appellant raised this argument for the first time on review , and he has not shown that he based his argument on new and material evidence not previously available despite his due diligence, the Board will not consider it. Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980); 5 C.F.R. § 1201.115 (d). ¶8 For the reasons set forth above, we deny the appellant’s petition for review and affirm the initial decision dismissing his appeal for lack of jurisdiction. NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we 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 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 statement of how courts will 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 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 6 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC revie w of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so , you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 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 7 with the EEOC no later than 30 calendar days after your representative 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 j udicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then yo u may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 8 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov . Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U .S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses t he 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	SINCLAIR_JONATHON_M_SF_0752_16_0565_I_1_FINAL_ORDER_1971194.pdf	2022-10-21	null	SF-0752	NP
3,999	https://www.mspb.gov/decisions/nonprecedential/COLIN_WANDA_DA_0752_17_0016_I_1_FINAL_ORDER_1971258.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD WANDA COLIN, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER DA-0752 -17-0016 -I-1 DATE: October 21, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Wanda Colin , Marrero, Louisiana, pro se. Brandi M. Powell , New Orleans, Louisiana, for the agency. BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed her removal . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 or 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 re quired 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 clos ed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 After the appellant had been absent on approved leave without pay for more than 1 year, the agency removed her from h er GS -8 Medical Records Technic ian position effective December 12, 2015. Initial Appeal File (IAF), Tab 7 at 11 -18. On appeal, the administrative judge issued an initial decision finding that the agency proved its charge by preponderant evidence , the app ellant failed to prove her affirmative defenses of disability discrimination and retaliation for filing a claim with the Office of Workers’ Compensation Programs (OWCP), and the penalty of removal was within the bounds of reasonableness. IAF, Tab 13, Init ial Decision (ID) . The appellant has filed an apparently untimely petition for review of the initial decision. Petition for Review (PFR) File, Tabs 1 -2. ¶3 The appellant does not challenge the administrative judge’s findings concerning the merits of the cas e. As a general rule, an adverse action cannot be based on an employee’s use of approved leave. Gartner v. Department of the Army , 104 M.S.P.R. 463, ¶ 9 (2007). However, the Board has held that an agency may bring an adverse action against an employee for excessive ap proved absences if the following criteria are met: (1) the employee i s absent for compelling reasons beyond her control so that the a gency’s approval or disapproval was immaterial because she could not be on the job; (2) the absences continued 3 beyond a reaso nable time, and the agency warned the employee that an adverse action could be taken unless she became available for duty on a regular basis; and (3) the position needed to be filled by an employee available for duty on a regular basis. Id. Even if, as here, the employee is receiving workers’ compensation benefits, an agency need not carry the emp loyee on its employment rolls indefinitely. Bair v. Department of Defense , 117 M.S.P.R. 374 , ¶ 12 (2012) , overruled on other grounds by Abbott v. U.S. Postal Service , 121 M.S.P.R. 294 (2014) . After a year, when the employee’s right to unconditional restoration expir es, the agency may remove the employee based on excessive absence. Id., ¶ 13. The administrative judge correctly found that the agency met its burden of proof. ID at 4-5. ¶4 The administrative judge further found that the appellant did not prove disability discrimination based on a fail ure to accommodate because the appellant failed to identify any accommodation that would allow her to perform the essential functions of her position. ID at 8 -9. In fact, the agency attempted to take measures to alleviate what it understood to be a disability related to environmental factors at her work location. However, environmental changes, such as relocating the appellant’s office and fumigating the space, had n o impact because the appellant’s disability is not simply a matter of an unhealthy working environment. In fact, the agency agreed, as part of the settlement of an equal employment opportunity complaint, to permanently relocate the appellant’s work statio n to a different building, but she still could not bring herself to come to work. The ap pellant did not request any non environmental accommodations, and it is not apparent what other accommodation might make it possible for her to return to work, given th e unique circumstances of her particular medical condition. Therefore, we see no error in the administrative judge’s finding that the appellant failed to prove reasonable accommodation disability discrimination. ¶5 The administrative judge also found that th e appellant failed to prove disparate treatment disability discrimination because she did not show that her 4 disability was a motivating factor in the decision to remove her. Id. The administrative judge found that the appellant did not prove retaliation for filing an OWCP claim because the appellant failed to introduce any evidence that the propo sing and deciding officials harbored any retaliatory intent. ID at 10 -11. These findings are well supported by the record and we see no reason to disturb them.2 ¶6 On review, the appellant reiterates allegations she made below about the agency’s handling of her disability retirement application. Based on the appellant’s allegations and the documentation she has su bmitted in support of them, there is reason to believe that the agency may have made fundamental errors in compiling the agency’s portion of the disability retirement application. The appellant speculates that the agency’s misfeasance constitutes both dis ability discrimination and retaliation for her OWCP activity. However, she identifies no evidence of discriminatory or retaliatory motive, and there is nothing in the record to suggest a causal link between the appellant’s status and the agency’s action. ¶7 Moreover, the Board generally has jurisdiction over Office of Personnel Management ( OPM ) determinations affecting an individual’s rights or interests under the retirement system only after OPM has issued a final or reconsideration decision. Coffey v. U.S. Postal Service , 77 M.S.P.R. 281 , 286 (1998) . When an appellant alleges that OPM’s adjudication of his annuity was incorrect becau se of errors on the part of his forme r employing agency, he still has to show that OPM has issued a reconsideration decision on the matter before he could appeal it to the Board. Id. Here, because there is no evidence that OPM has adjudicated the appellant’s disability retirement application and issued a reconsideration decision , 2 Because we affirm the administrative judge’s finding that the appellant failed to show that any prohibited consideration was a motivating factor in the agency ’s action, we need not resolve the issue of whether the appellant proved that discrimination or retaliation was a “but-for” cause of the agency ’s decisions. See Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶¶ 20 -22, 29 -33. 5 the appellant’s claim of discrimination and retaliation in the handling of her disability retirement application is not within the Board’s purview at this point. ¶8 In ligh t of our finding on the merits of this appeal, we need not address the apparent untimeliness of her petition for review. 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 of fer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rul e regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file withi n the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whe ther a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition f or review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 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 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition 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 representativ e receives this decision. If the action involves a claim of 7 discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement o f prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.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 req uest for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judic ial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 8 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of all egations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals fo r the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Pla ce, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellan ts,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://ww w.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 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 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. 9 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept repr esentation 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.uscou rts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	COLIN_WANDA_DA_0752_17_0016_I_1_FINAL_ORDER_1971258.pdf	2022-10-21	null	DA-0752	NP

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