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400	https://www.mspb.gov/decisions/nonprecedential/Amavisca_Andrew_P_SF-315H-20-0500-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ANDREW P. AMAVISCA, Appellant, v. DEPARTMENT OF THE AIR FORCE, Agency.DOCKET NUMBER SF-315H-20-0500-I-1 DATE: October 24, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Andrew P. Amavisca , La Mirada, California, pro se. Kathryn Price , Los Angeles Air Force Base, El Segundo, California, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his probationary 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following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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). based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). BACKGROUND Effective August 20, 2018, the agency appointed the appellant to a GS-11 Contract Specialist position in the competitive service, subject to a 2-year probationary period. Initial Appeal File (IAF), Tab 8 at 22-25. On May 7, 2020, while the appellant was still serving his probationary period, the agency notified him that he would be terminated from his position, effective May 9, 2020, due to his failure to demonstrate an acceptable level of performance. IAF, Tab 1 at 5, 9, Tab 8 at 20-21. The appellant subsequently requested to resign and was allowed to do so effective May 12, 2020. IAF, Tab 8 at 15-19. The appellant filed an appeal with the Board challenging the termination. IAF, Tab 1 at 1-5. He requested a hearing. Id. at 2. The administrative judge issued orders informing the appellant of his burden to establish Board jurisdiction over his alleged involuntary termination and ordered him to file evidence and argument nonfrivolously alleging that his appeal was within the Board’s jurisdiction. IAF, Tabs 3, 9. The agency moved to dismiss the appeal for lack of jurisdiction. IAF, Tab 8, Subtab 1 at 6-11. The appellant responded to the2 administrative judge’s orders and the agency’s submissions, disputing that he had poor performance. IAF, Tab 6 at 4-5, Tab 10 at 4-7. He further argued that the agency did not follow its own policies when it issued the termination and that his resignation was coerced. IAF, Tab 10 at 7-10. In an initial decision, the administrative judge dismissed the appeal without holding the requested hearing, finding that the appellant failed to make a nonfrivolous allegation of Board jurisdiction. IAF, Tab 14, Initial Decision (ID) at 4-7. The appellant has filed a petition for review of the initial decision, and the agency has responded. Petition for Review (PFR) File, Tabs 1, 3. DISCUSSION OF ARGUMENTS ON REVIEW The Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant has the burden of proof on the issue of jurisdiction, and if he makes a nonfrivolous allegation that the Board has jurisdiction over an appeal, he is entitled to a hearing on the jurisdictional question. Yiying v. Department of Agriculture , 106 M.S.P.R. 178, ¶ 8 (2007); 5 C.F.R. § 1201.56(b)(2)(i)(A). We agree with the administrative judge that the appellant failed to raise a nonfrivolous allegation of Board jurisdiction over the instant appeal. At the time relevant to this appeal, individuals appointed to a permanent competitive-service position at the Department of Defense, including the Department of the Air Force, were subject to a 2-year probationary period and only qualified as an “employee” with chapter 75 appeal rights if they completed 2 years of current continuous service. 5 U.S.C. § 7511(a)(1)(A)(ii) (2018); 10 U.S.C. § 1599e(a), (b)(1)(A), (d) (repealed 2022); Bryant v. Department of the Army, 2022 MSPB 1, ¶ 8 & n.2.2 Here, it is undisputed that the appellant was 2 At the time of the appellant’s appointment to his competitive-service position in August 2018, an individual appointed to a permanent competitive-service position at the Department of Defense (DOD) was subject to a 2-year probationary period and only3 terminated before completing 2 years of service. IAF, Tabs 1, 6, 8, 10, 12. The administrative judge found that the appellant had less than 2 years of Federal civilian service. ID at 5-6. The appellant does not dispute this finding on review, and we discern no basis to disturb it. Prior military service cannot be tacked onto a period of Federal civilian service in order to meet the 2-year current continuous service requirement. See Wilder v. Merit Systems Protection Board , 675 F.3d 1319, 1322-23 (Fed. Cir. 2012) (reaching the same conclusion when the applicable service requirement was 1 year under 5 U.S.C. 711(a)(1)(A)(ii), relying on 5 C.F.R. § 752.402 (defining current continuous employment as “a period of employment or service immediately preceding an adverse action without a break in Federal civilian employment of a workday”)); 5 C.F.R. § 315.802(b) (reflecting that”[p]rior civilian service . . . counts toward completion of probation” in the competitive service). While the appellant had over 3 years of prior military service, the administrative judge properly found that the appellant’s prior military service could not be tacked on under 5 C.F.R. § 315.802(b). ID at 5. On review, the appellant identifies himself as a disabled veteran but does not dispute the administrative judge’s determination that he is not entitled to tacking. PFR File, Tab 1 at 5. We discern no reason to disturb this finding. A probationary employee in the competitive service may appeal to the Board under limited circumstances set forth at 5 C.F.R. § 315.806. Henderson v. Department of the Treasury , 114 M.S.P.R. 149, ¶ 9 (2010). The Board has qualified as an “employee” under 5 U.S.C. § 7511(a)(1)(A)(ii) (2018) and 10 U.S.C. § 1599e (2018) if he was not serving a probationary or trial period under an initial appointment, or if he had completed 2 years of current continuous service under other than a temporary appointment limited to 1 year or less. IAF, Tab 11 at 41; see Bryant v. Department of the Army , 2022 MSPB 1, ¶ 8. In December 2021, while this appeal was pending on petition for review, Congress repealed 10 U.S.C. § 1599e and the 2 -year probationary period for such DOD appointments. Bryant, 2022 MSPB 1, ¶ 8. However, this repeal was made effective December 31, 2022, and only applied to individuals appointed on or after that date. 10 U.S.C. § 1599e note; Bryant, 2022 MSPB 1, ¶ 8. The repeal of 10 U.S.C. § 1599e does not affect the outcome of this appeal because the appellant was appointed in August 2018, before the effective date of the repeal.4 jurisdiction over termination appeals under 5 C.F.R. § 315.806 in situations in which the agency’s action was improperly based on partisan political reasons or marital status, or taken through improper procedures when the employee was terminated for reasons based in whole or in part on conditions arising prior to his appointment. Henderson, 114 M.S.P.R. 149, ¶ 9. The administrative judge found that the appellant made no allegation that his termination was based on pre-appointment or partisan political reasons or marital status, and the appellant likewise has made no such argument on review. ID at 6; PFR File, Tab 1 at 4-5; IAF, Tabs 1, 6, 12. We have reviewed the appellant’s remaining arguments and find that he has presented no basis for disturbing the findings of the administrative judge concerning his failure to make a nonfrivolous allegation of Board jurisdiction. The appellant does not challenge the administrative judge’s jurisdictional findings, but instead, he raises arguments regarding the merits of the agency’s termination decision. PFR File, Tab 1 at 4-5. Specifically, he appears to again dispute the agency’s assessment that his performance was poor. PFR File, Tab 1 at 5. He also reasserts that he was coerced to resign in lieu of termination for poor performance. Id. The appellant’s arguments as to the merits of his termination are immaterial to the jurisdictional issue before us. Rivera v. Department of Homeland Security , 116 M.S.P.R. 429, ¶ 13 (2011). We agree with the administrative judge’s finding that the Board has no jurisdiction to review the appellant’s claim that his resignation was involuntary. ID at 6-7; see Link v. Department of the Navy , 3 M.S.P.R. 187, 189 (1980) (finding the appellants’ alleged involuntary resignations during their probationary periods provided them with no greater right of appeal to the Board than they would have had if they had been terminated). Further, the administrative judge properly determined that, absent an otherwise appealable action, the Board lacks jurisdiction over claims that the agency committed harmful procedural error in effectuating the appellant’s termination. ID at 7; PFR File, Tab 1 at 4-5; see5 Hurston v. Department of the Army , 113 M.S.P.R. 34, ¶ 11 (2010) (finding that, because the Board had no jurisdiction over the probationary termination appeal, the Board also had no independent jurisdiction to adjudicate the appellant’s discrimination and harmful error claims); Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980) (explaining that prohibited personnel practices under 5 U.S.C. § 2302(b) are not an independent source of Board jurisdiction), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982). The appellant also submitted several documents for the Board’s consideration on review, namely, a copy of Air Force Instruction 36-130, his termination memorandum, and performance appraisals for rating periods August 20, 2018, to March 31, 2019, and April 1, 2019, to March 31, 2020. PFR File, Tab 1 at 6-58. These documents provide no basis to disturb the initial decision. They are in the record below, and, in any event, none of the documents are material to the jurisdictional issue. IAF Tab 1 at 9-11, Tab 6 at 6-13, Tab 10 at 11-63; see 5 C.F.R. § 1201.115(d) (explaining that the Board may grant a petition for review if it contains new and material evidence); see also Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980) (observing that evidence that is already a part of the record is not new). Accordingly, for the reasons discussed above, we deny the appellant’s petition for review and affirm the initial decision dismissing his probationary termination appeal for lack of 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 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 Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at7 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case, and 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,8 and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 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. 115-195,9 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 132 Stat. 1510. 10 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.11	Amavisca_Andrew_P_SF-315H-20-0500-I-1_Final_Order.pdf	2024-10-24	ANDREW P. AMAVISCA v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. SF-315H-20-0500-I-1, October 24, 2024	SF-315H-20-0500-I-1	NP
401	https://www.mspb.gov/decisions/nonprecedential/Beck_Lisa_S_PH-315I-20-0426-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LISA S. BECK, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER PH-315I-20-0426-I-1 DATE: October 23, 2024 THIS ORDER IS NONPRECEDENTIAL1 Lisa S. Beck , Darlington, Maryland, pro se. Jeffrey M. Gott , Aberdeen Proving Ground, Maryland, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member* *Member Kerner recused himself and did not participate in the adjudication of this appeal. REMAND ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition for review, 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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). VACATE the initial decision, and REMAND this case to the regional office for further adjudication in accordance with this Remand Order. ¶2Under 5 U.S.C. § 1214(a)(3), an employee is required to exhaust her administrative remedies with the Office of Special Counsel (OSC) before seeking corrective action from the Board. Mason v. Department of Homeland Security , 116 M.S.P.R. 135, ¶ 8 (2011). An appellant filing an IRA appeal has not satisfied the exhaustion requirement unless she has filed a complaint with OSC and either OSC has notified her that it was terminating its investigation of her allegations or 120 calendar days have passed since she first sought corrective action. Simnitt v. Department of Veterans Affairs , 113 M.S.P.R. 313, ¶ 8 (2010). ¶3The administrative judge dismissed the appeal for lack of jurisdiction based on the appellant’s failure to exhaust her administrative remedies before OSC, concluding that her IRA appeal was premature because she had not provided a letter from OSC stating that it was terminating its investigation into her allegations and 120 days had not elapsed since she filed her complaint with OSC. Initial Appeal File (IAF), Tab 12, Initial Decision at 1-2. However, with her petition for review, the appellant has provided a copy of a preliminary determination letter from OSC dated September 10, 2020, summarizing her complaint and stating that OSC planned on taking no further action on her complaint. Petition for Review (PFR) File, Tab 1 at 11-14. The preliminary determination letter provided the appellant until September 23, 2020, to submit additional information for consideration and stated that OSC intended to close the case and notify the appellant of any additional rights she might have after that date. Id. at 14. Although the appellant has not submitted any further evidence to indicate that OSC has since terminated its investigation, 120 days have now elapsed since she filed her complaint with OSC. Additionally, the issue of jurisdiction is always before the Board and may be raised at any time. Stoglin v. Department of the Air Force , 123 M.S.P.R. 163, ¶ 7 (2015), aff’d, 640 F. App’x 864 (Fed. Cir. 2016). Because 120 days have now elapsed since the appellant2 filed her OSC complaint, her appeal is ripe for adjudication, and the Board’s practice in such cases is to remand the case to the appropriate regional or field office for adjudication. See Simnitt, 113 M.S.P.R. 313, ¶ 9; Becker v. Department of Veterans Affairs , 112 M.S.P.R. 516, ¶ 7 (2009).2 ORDER ¶4Accordingly, we remand this case to the regional office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C. 2 Following the issuance of the initial decision in this case, and while this appeal was pending before the Board on petition for review, on March 31, 2021, the appellant filed a second Board appeal challenging the same personnel action and provided the same September 10, 2020 OSC preliminary determination letter she included with her petition for review in this case as proof of exhaustion of that claim. PFR File, Tab 1 at 11-14; Beck v. Department of the Army , MSPB Docket No. PH-1221-21-0180-W-1, Initial Appeal File (0180 IAF), Tab 1 at 15-18. The administrative judge assigned to that appeal subsequently issued an initial decision dismissing the appeal as untimely, and that decision became final when neither party filed a petition for review. Beck v. Department of the Army , MSPB Docket No. PH-1221-21-0180-W-1, Initial Decision at 1-3 (May 3, 2021); 0180 IAF, Tab 8. Because the subsequent appeal was dismissed on timeliness grounds instead of jurisdictional grounds, and because the instant appeal is now ripe for adjudication, it remains appropriate to remand the instant appeal for adjudication as a timely filed IRA appeal.3	Beck_Lisa_S_PH-315I-20-0426-I-1_Remand_Order.pdf	2024-10-23	LISA S. BECK v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-315I-20-0426-I-1, October 23, 2024	PH-315I-20-0426-I-1	NP
402	https://www.mspb.gov/decisions/nonprecedential/Gomez_AnthonyNY-1221-17-0105-B-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ANTHONY GOMEZ, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER NY-1221-17-0105-B-1 DATE: October 23, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Alan E. Wolin , Esquire, Jericho, New York, for the appellant. Timothy O’Boyle , Esquire, Hampton, Virginia, for the agency. Jane Yoon , Esquire, Brooklyn, New York, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER ¶1The appellant has filed a petition for review of the remand initial decision, which found that the appellant did not establish jurisdiction over a claim that the Board remanded for further adjudication. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to clarify that the claims addressed in the initial decision are denied on the merits while the additional claim remanded for further adjudication is dismissed for lack of jurisdiction, we AFFIRM the initial decision. ¶2In an initial decision, the administrative judge first assigned to this individual right of action appeal denied the appellant’s request for corrective action, on the merits, regarding two specific claims. Gomez v. Department of Veterans Affairs , MSPB Docket No. NY-1221-17-0105-W-1, Initial Decision (ID). The first concerned allegations of reprisal for disclosures about the agency’s filling of an Administrative Officer vacancy. ID at 6-9. The second concerned allegations of reprisal for his filing of a grievance. ID at 9-10. On review, the Board agreed with those findings. Gomez v. Department of Veterans Affairs, MSPB Docket No. NY-1221-17-0105-W-1, Remand Order (RO), ¶¶ 4-10 (July 24, 2023). However, the Board remanded the appeal for consideration of another alleged disclosure not addressed in the initial decision, i.e., one about the agency’s filling of a Lead Facility Telehealth Coordinator (FTC) vacancy. RO, ¶¶ 11-16. ¶3On remand, a newly assigned administrative judge instructed the appellant to establish jurisdiction over this remanded claim by presenting nonfrivolous2 allegations that he made a disclosure protected under section 2302(b)(8). Gomez v. Department of Veterans Affairs , MSPB Docket No. NY-1221-17-0105-B-1, Remand File (RF), Tab 6. The appellant responded, arguing that the issue had already been decided in his favor. RF, Tab 9 at 8-11. In the alternative, he argued that the Board did have jurisdiction over the alleged disclosure. Id. at 11-19. The administrative judge issued a remand initial decision finding otherwise. RF, Tab 12, Remand Initial Decision (RID) at 5-13. ¶4In his remand petition for review, the appellant presents the same arguments he presented below, with only slight inconsequential differences. Compare RF, Tab 9 at 8-20, with Gomez v. Department of Veterans Affairs , MSPB Docket No. NY-1221-17-0105-B-1, Remand Petition for Review (RPFR) File, Tab 1 at 11-22. He reasserts that jurisdiction over the remanded claim was already decided in his favor or that the Board does have jurisdiction over the matter. RPFR File, Tab 1 at 11-22. We are not persuaded by these arguments.2 ¶5Although we do not find any basis for granting the appellant’s remand petition for review, we modify the remand initial decision in one respect. The Board’s prior remand order vacated the initial decision but invited the administrative judge to incorporate the associated findings into a remand initial decision that would address the one unaddressed claim. RO, ¶ 15. The newly assigned administrative judge stated that she was doing so in the remand initial 2 In analyzing whether the appellant nonfrivolously alleged that he disclosed an abuse of authority, the administrative judge applied the standard historically used by the Board; under that standard, an abuse of authority is an arbitrary and capricious exercise of power by a Federal official or employee that adversely affects the rights of any person or results in personal gain or advantage to himself or to other preferred persons. RID at 9 (citing Chavez v. Department of Agriculture , 120 M.S.P.R. 285, ¶ 22 (2013)). However, in Smolinski v. Merit Systems Protection Board , 23 F.4th 1345, 1351-52 (Fed. Cir. 2022), the U.S. Court of Appeals for the Federal Circuit defined an abuse of authority more broadly as an arbitrary and capricious exercise of authority that is contrary to the agency’s mission. We have considered the appellant’s additional disclosure under the standard set forth in Smolinski, and we still find that he failed to nonfrivolously allege that he disclosed an abuse of authority regarding the Lead FTC vacancy. Thus, the result is the same under either standard.3 decision. RID at 2. However, she further described the remand initial decision as one dismissing the appeal, rather than just the remanded claim, for lack of jurisdiction. RID at 2, 13. To clarify, the sum of these proceedings is as follows: The Board denies the appellant’s request for corrective action, on the merits, regarding alleged disclosures about the Administrative Officer vacancy and alleged grievance activity. ID at 6-10; RO, ¶¶ 4-10, 15; RID at 2. The Board dismisses the appellant’s other alleged disclosure, about the Lead FTC vacancy, for lack of jurisdiction. RID at 5-13. NOTICE OF APPEAL RIGHTS3 The initial decision, as supplemented by this Final Order, constitutes the Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you5 receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and 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: 6 Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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. 7 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Gomez_AnthonyNY-1221-17-0105-B-1_Final_Order.pdf	2024-10-23	ANTHONY GOMEZ v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. NY-1221-17-0105-B-1, October 23, 2024	NY-1221-17-0105-B-1	NP
403	https://www.mspb.gov/decisions/nonprecedential/Davis_AmandaDE-1221-19-0234-W-3_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD AMANDA DAVIS, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER DE-1221-19-0234-W-3 DATE: October 23, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Janice Jackson , Leavenworth, Kansas, for the appellant. Kristine Hale Bell , Fort Leavenworth, Kansas, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member* *Member Kerner recused himself and did not participate in the adjudication of this appeal. FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which denied her request for corrective action on the merits after a hearing. 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 distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 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). ¶2The administrative judge found that the appellant did not meet her burden of proof in this individual right of action appeal for two distinct reasons. First, he found that the appellant did not prove that she made a protected disclosure. Davis v. Department of the Army , MSPB Docket No. DE1221-19-0234-W-3, Refiled Appeal File, Tab 13, Initial Decision (ID) at 5-10. Second, he found that the appellant did not prove that her alleged disclosures were a contributing factor in the contested personnel actions, i.e., her removal from the workplace, placement on administrative leave, and probationary termination. ID at 10-12. ¶3On petition for review, the appellant argues the merits of her termination during her probationary period. E.g., Davis v. Department of the Army , MSPB Docket No. DE-1221-19-0234-W-3, Petition for Review (PFR) File, Tab 1 at 7, 12-15. We find no reason to disturb the administrative judge’s decision in this regard. ¶4The appellant also contends that the administrative judge erroneously determined that her first alleged disclosure concerned a policy dispute and thus was not protected. Id. at 8-10. In Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶ 12 (2015), the Board found that, because the statements that2 were alleged to be protected disclosures in that appeal occurred in the context of a discussion over a proposed policy, they were merely debatable, and a disinterested observer with knowledge of the essential facts known to and readily ascertainable to the appellant could not reasonably conclude that they evidenced any of the situations specified in 5 U.S.C. § 2302(b)(8). In this appeal, the administrative judge found that the appellant’s statements similarly occurred in the context of a discussion over a proposed policy; the appellant disclosed that a potential change in the inmate assessment tool, which never occurred, would have violated the agency’s standard operating procedures. ID at 6-8. The Board has previously determined that section 2302(b)(8) is satisfied by the disclosure of potential violations “where they evidence a reasonable belief of wrongdoing” and “the potential wrongdoing [is] real and immediate.” Ward v. Department of the Army, 67 M.S.P.R. 482, 488–89 (1995). The U.S. Court of Appeals for the Federal Circuit looked favorably on this analysis, but in doing so, made clear that it did not intend to convey that the “mere . . . discussion of an action that someone might consider to be a violation of a law, rule, or regulation is a justification for a whistleblower complaint.” Reid v. Merit Systems Protection Board, 508 F.3d 674, 678 (Fed. Cir. 2007). Consistent with the Board’s analysis in Reid, the court observed that only “[w]hen such discussion proceeds to an instruction to violate the law,” will the disclosure of a potential violation be protected, reasoning that “a holding that an instruction to carry out an act can never qualify under the WPA if the act never occurred is too bright a line.” Id. But the appellant does not allege that she was instructed to carry out any change in the risk assessment of inmates. Thus, her alleged disclosure is not a protected disclosure under this analysis. ¶5Concerning her second alleged disclosure, the appellant maintains, contrary to the administrative judge’s finding, that there was no court order or other document authorizing the release of the inmate’s medical information to the prosecutor. PFR File, Tab 1 at 17-18. We find that the administrative judge3 correctly weighed the evidence in this regard, properly making credibility findings. We disagree with the appellant’s arguments to the contrary. ¶6Next, the appellant presents some arguments about the contributing factor criterion. Id. at 18-19. The administrative judge found that the appellant did not meet the contributing factor requirement because she did not prove that the officials responsible for the challenged personnel actions had knowledge of her alleged disclosures. ID at 10-12. This is not, however, the only way to establish the contributing factor criterion. See, e.g., Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶¶ 14-15 (2012) (describing other things to consider for purposes of resolving whether the contributing factor criterion is met). Nevertheless, the administrative judge’s conclusion that the appellant failed to prove that she made any protected disclosure is dispositive, so we need not consider the contributing factor criterion any further. ¶7More broadly, the appellant asserts that the administrative judge ignored evidence in support of her claims and exhibited bias in favor of the agency. E.g., PFR File, Tab 1 at 4-5, 10, 18. An 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 and Human Services , 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). We also find that the appellant’s allegations of bias are unavailing. See Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386 (1980) (recognizing the presumption of honesty and integrity that accompanies administrative adjudicators). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4 Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “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 discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and 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 the6 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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.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 of7 review within 60 days of the date of issuance of this decision. 5 U.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. MSPB decisions 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.9	Davis_AmandaDE-1221-19-0234-W-3_Final_Order.pdf	2024-10-23	AMANDA DAVIS v. DEPARTMENT OF THE ARMY, MSPB Docket No. DE-1221-19-0234-W-3, October 23, 2024	DE-1221-19-0234-W-3	NP
404	https://www.mspb.gov/decisions/nonprecedential/Butler_IngridDA-0752-20-0060-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD INGRID BUTLER, Appellant, v. FEDERAL DEPOSIT INSURANCE CORPORATION, Agency.DOCKET NUMBER DA-0752-20-0060-I-1 DATE: October 22, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Morgan Velasquez , Esquire, and Tyler J. Sroufe , Esquire, Dallas, Texas, for the appellant. Johnathan P. Lloyd , Esquire, and Sharon Lock Davis , Esquire, Dallas, Texas, for the agency . BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which sustained her removal based on a charge of excessive absences. For the reasons discussed below, we GRANT the appellant’s petition for review, REVERSE 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). administrative judge’s finding sustaining the agency’s charge, VACATE the administrative judge’s nexus and penalty analysis, and except as expressly MODIFIED to supplement the discussion of the appellant’s affirmative defenses, AFFIRM the remainder of the initial decision. The appellant’s removal is NOT SUSTAINED. BACKGROUND ¶2The appellant, who served as a CG-12 Compliance Examiner, sustained a back injury while on a work trip. Initial Appeal File (IAF), Tab 1 at 10, 24. Starting on September 25, 2017, due to ongoing medical issues, the appellant stopped reporting to work and was placed in a leave without pay status. IAF, Tab 24 at 5, 20-69. Subsequently, the agency granted the appellant’s request for leave under the Family and Medical Leave Act of 1993 (FMLA), which was exhausted as of May 18, 2018. Id. at 207-209. The appellant did not return to work, and on July 3, 2018, Federal Occupational Health (FOH) sent a letter to the agency, explaining that the appellant’s provider indicated that she had multiple medical conditions “necessitating continued leave,” and that he was “unable to provide any return to work date” at that time. Id. at 250. Subsequently, the appellant’s second-level supervisor issued a notice of excessive absence, dated July 26, 2018, stating, among other things, that the appellant’s continued absence was causing an undue hardship to the agency, and that the agency may take an adverse action based on her record of excessive absenteeism if she failed to return to full-time duty by August 13, 2018, regardless of whether her absences were approved. Id. at 253-54. The appellant did not return to work, instead emailing her second-level supervisor, explaining that her medical conditions required further continuous leave and her doctor could not provide a return to work date at that time. Id. at 280. ¶3Thereafter, the agency issued the appellant a notice of proposed removal for excessive absences, alleging that she was absent from her position for over 1,4002 hours from September 25, 2017, to September 1, 2018, excluding the 480 hours she was on FMLA-protected leave. Id. at 10-13. The appellant did not make an oral or written reply, and the deciding official issued a decision sustaining the charge and removing the appellant effective December 20, 2018. Id. at 4-9. The appellant subsequently filed a formal equal employment opportunity (EEO) complaint concerning her removal and timely filed this appeal following the issuance of the final agency decision. IAF, Tab 1 at 9-21. ¶4The administrative judge issued a decision on the written record, sustaining the agency’s removal action, finding that the agency established the charge of excessive absences, nexus, and the reasonableness of the penalty. IAF, Tab 52, Initial Decision (ID) at 3-8, 13-16. He further found that the appellant failed to prove her affirmative defenses of disability discrimination based on a failure to accommodate and EEO retaliation. ID at 10-13. The appellant has filed a petition for review, challenging the administrative judge’s findings related to the merits of the charge, the finding of nexus, and the reasonableness of the penalty. Petition for Review (PFR) File, Tab 3 at 7-14. She also alleges that the agency did not engage in the interactive process and failed to reasonably accommodate her, and that her supervisor had motive to retaliate against her because of a prior EEO complaint. Id. at 8-9, 14-17. DISCUSSION OF ARGUMENTS ON REVIEW The length of the appellant’s absence after the agency warned her she may face disciplinary action is not sufficiently unreasonable to establish a charge of excessive absence. ¶5As a general rule, an agency may not take an adverse action based on an employee’s use of approved leave. Coombs v. Social Security Administration , 91 M.S.P.R. 148, ¶ 12 (2002). However, an exception applies when the following criteria are met: (1) the employee was absent for compelling reasons beyond her control so that agency approval or disapproval of leave was immaterial because she could not be on the job; (2) the absences continued beyond a reasonable time,3 and the agency warned the employee that an adverse action could be taken unless she became available for duty on a regular, full-time or part-time basis; and (3) the agency showed that the position needed to be filled by an employee available for duty on regular, full-time or part-time basis. Cook v. Department of the Army , 18 M.S.P.R. 610, 611-12 (1984). This exception is applicable only under unusual circumstances, such as when the employee is unable to return to duty because of the continuing effects of illness or injury. Id. at 612. ¶6After the issuance of the initial decision, the Board clarified the absences that could be used to support an excessive absence charge in Williams v. Department of Commerce , 2024 MSPB 8, ¶¶ 6-12. Specifically, the Board held that, as here, when an agency charges an appellant with excessive absence, it may only rely on absences that occurred after the appellant received warning that she may be disciplined if she did not become available for duty. Williams, 2024 MSPB 8, ¶¶ 6-8. In the instant case, the agency first warned the appellant that she could be disciplined for her approved absence in the agency’s notice of excessive absence letter, which was received by the appellant on Friday, July 27, 2018, via email.2 IAF, Tab 24 at 252-56. Therefore, the earliest date the agency could use to support its charge is the first workday after the warning, i.e., Monday, July 30, 2018. As noted above, the agency’s charge covers the appellant’s absences through September 1, 2018. Id. at 12. Therefore, in support of its excessive absences charge, the agency may only use the period from July 30 to September 1, 2018, which consists of 25 workdays.3 Williams, 2024 MSPB 8, ¶¶ 6-8. Such a relatively short period of absence does not prove an excessive absence charge. Stated another way, 25 days of absence is not sufficient to 2 The agency also sent its notice of excessive absence letter by regular mail, as well as certified mail, which the appellant received on August 1, 2018. IAF, Tab 24 at 277-78. 3 Because the notice of excessive absence letter designated August 13, 2018 as the return to duty date, it could be argued that the charge only covers 15 workdays, between August 13 and September 1, 2018. IAF, Tab 24 at 254. However, regardless of whether the period of coverage is 15 workdays or 25 workdays, such a short period of time does not constitute excessive absence. 4 establish that the appellant’s absence continued beyond a reasonable time, and therefore, the agency has not proven its charge of excessive absence. See Cook, 18 M.S.P.R. at 611-12. Accordingly, the appellant’s removal cannot be sustained, and the action must be reversed. Although we modify the administrative judge’s analysis, we nevertheless affirm his finding that the appellant did not establish her failure to accommodate claim. ¶7The administrative judge found that the appellant did not establish her failure to accommodate claim because, regardless of whether the appellant was a qualified individual with a disability, she failed to respond to the agency’s good-faith attempts to enter into the interactive process and did not identify any reasonable accommodation that would have allowed her to return to duty. ID at 10-11. On review, the appellant argues that, because the agency never engaged with her in the interactive process, it cannot prove that she would not have been able to return to duty if a reasonable accommodation had been provided. PFR File, Tab 3 at 8-9, 14-15. While we agree with the administrative judge that the appellant has not established her disability discrimination claim, pursuant to Haas v. Department of Homeland Security , 2022 MSPB 36, we must first determine whether the appellant was a qualified individual with a disability and, therefore, entitled to reasonable accommodation. ID at 10-11. ¶8It is illegal for an employer to “discriminate against a qualified individual with a disability.” 42 U.S.C. § 12112(a);4 Haas, 2022 MSPB 36, ¶ 28. Both a claim of disability discrimination based on an individual’s status as disabled and a claim based on the agency’s failure to reasonably accommodate that disability require that the individual be “qualified.” Haas, 2022 MSBP 36, ¶ 28. To be a qualified individual with a disability, the appellant must show that she can 4 The Board adjudicates claims of disability discrimination raised in connection with an otherwise appealable action under the substantive standards of section 501 of the Rehabilitation Act. Haas, 2022 MSPB 36, ¶ 28. The standards under the American with Disabilities Act, as amended by the Americans with Disabilities Act Amendments Act of 2008, have been incorporated into the Rehabilitation Act, and the Board applies them to determine whether there has been a Rehabilitation Act violation. Id. 5 “perform the essential functions of the . . . position that [she] holds or desires” with or without reasonable accommodation.5 42 U.S.C. § 12111(8). Thus, an appellant can establish that she is an individual with a disability by showing that she can, with or without accommodation, perform either the essential functions of her position of record or those of a vacant funded position to which she could be assigned. Desjardin v. U.S. Postal Service , 2023 MSPB 6, ¶ 28. ¶9Based on the record before us, we find that the appellant did not prove that she is a qualified individual with a disability. According to the appellant’s FMLA paperwork, the July 3, 2018 FOH letter, and the appellant’s statements in her August 10, 2018 email, the appellant suffered from medical conditions that required continuous leave, and it was not clear whether the appellant could ever return to work. IAF, Tab 24 at 193-94, 250, 280. Further, the appellant has never identified a reasonable accommodation that would have allowed her to return to work; she has only requested continued leave. Id. at 178-80, 192-200, 243-47, 280. Indefinite leave, with no foreseeable end, does not allow the appellant to perform the functions of any position and, thus, does not constitute a reasonable accommodation. Clemens v. Department of the Army , 120 M.S.P.R. 616, ¶ 10 (2014) (explaining that a reasonable accommodation includes modifications to the manner in which a position is customarily performed in order to enable a qualified individual with a disability to perform the essential job functions, or reassigning the employee to a vacant position whose duties the employee can perform). Accordingly, we find that the appellant cannot establish a failure to accommodate claim because she is not a qualified individual with a disability. While we modify the administrative judge’s analysis to incorporate the updated legal standard, we nevertheless affirm his finding that the appellant did not establish her EEO retaliation claim. ¶10In analyzing the appellant’s EEO retaliation claim, the administrative judge used the legal framework set forth by the Board in Savage v. Department of the 5 Neither party disputes that the appellant is an individual with a disability. IAF, Tab 24 at 193-95.6 Army, 122 M.S.P.R. 612, ¶ 51 (2015), and found that the appellant did not establish that the agency’s action was motivated by her EEO activity.6 ID at 12-13. Under that standard, when an appellant asserted an affirmative defense of discrimination or retaliation under 42 U.S.C. § 2000e-16, the Board would first inquire whether she had shown by preponderant evidence that the prohibited consideration was a motivating factor in the contested personnel action. Savage, 122 M.S.P.R. 612, ¶ 51. Such a showing was sufficient to establish that the agency violated 42 U.S.C. § 2000e-16, thereby committing a prohibited personnel practice under 5 U.S.C. § 2302(b)(1). Savage, 122 M.S.P.R. 622, ¶ 51. If the appellant met her burden, the Board would then inquire whether the agency had shown by preponderant evidence that the action was not based on the prohibited personnel practice, i.e., that it would still have taken the contested action absent the alleged discriminatory or retaliatory motive. Id. If the Board found that the agency made that showing, its violation of 42 U.S.C. § 2000e-16 would not require reversing the action. Id. ¶11Following the issuance of the initial decision, the Board issued Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 20-25, 30, which overruled parts of Savage and clarified the proper analytical framework to be applied to affirmative defenses of Title VII discrimination and retaliation. Specifically, the Board explained in Pridgen that for status-based discrimination claims, in order to obtain full relief, the appellant must show that discrimination or retaliation was a “but-for” cause of the personnel action. Pridgen, 2022 MSPB 31, ¶¶ 21-22. The Board also clarified the expansive scope of potentially relevant evidence. Id., ¶¶ 23-25. Based on our review of the record, we conclude that the outcome of this appeal under the standard set forth in Pridgen would be the same as arrived at by the administrative judge. 6 The appellant’s prior EEO activity is a previous EEO complaint. IAF, Tab 1 at 13; PFR File, Tab 3 at 10.7 ORDER ¶12We ORDER the agency to cancel the appellant’s removal and restore her to duty, retroactive to December 20, 2018. See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days after the date of this decision. ¶13We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, no later than 60 calendar days after the date of this decision. We ORDER the appellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, interest due, and/or other benefits, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision. ¶14We 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). ¶15No 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). ¶16For 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 decision8 are attached. The agency is ORDERED to timely provide DFAS or NFC with all documentation necessary to process payments and adjustments resulting from the Board’s decision in accordance with the attached lists so that payment can be made within the 60-day period set forth above. NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO REQUEST ATTORNEY FEES AND COSTS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set forth at Title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal. NOTICE OF APPEAL RIGHTS7 The initial decision, as supplemented by this Final Order, constitutes the Boards 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 7 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.9 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 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 an action that is appealable to the Board and that such action 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. 420 (2017). If you have a representative in this case, and 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: 11 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.8 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 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. 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. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.13 DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations DFAS BACK PAY CHECKLIST The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following checklist to ensure a request for payment of back pay is complete. Missing documentation may substantially delay the processing of a back pay award. More information may be found at: https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx. NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by vendor pay, not DFAS Civilian Pay. ☐1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the specific dates of the back pay period within the ticket comments. Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket comments as to why the documentation is not applicable: ☐2) Settlement agreement, administrative determination, arbitrator award, or order. ☐3) Signed and completed “Employee Statement Relative to Back Pay”. ☐4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐7) Outside earnings documentation. Include record of all amounts earned by the employee in a job undertaken during the back pay period to replace federal employment. Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also, include record of any unemployment earning statements, workers’ compensation, CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums, or severance pay received by the employee upon separation. Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment they may have received. The payroll office must collect the debt from the back pay award. The annual leave will be restored to the employee. Annual leave that exceeds the annual leave ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g). NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES Below is the information/documentation required by National Finance Center to process payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit Systems Protection Board, EEOC, and courts . 1.Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information describing what to do in accordance with decision. 2.The following information must be included on AD-343 for Restoration: a.Employee name and social security number. b.Detailed explanation of request. c.Valid agency accounting. d.Authorized signature (Table 63). e.If interest is to be included. f.Check mailing address. g.Indicate if case is prior to conversion. Computations must be attached. h.Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected (if applicable). Attachments to AD-343 1.Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium, etc. with number of hours and dates for each entitlement (if applicable). 2.Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts. 3.Outside earnings documentation statement from agency. 4.If employee received retirement annuity or unemployment, provide amount and address to return monies. 5.Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable) 6.If employee was unable to work during any or part of the period involved, certification of the type of leave to be charged and number of hours. 7.If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave to be paid. NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and required data in 1-7 above. The following information must be included on AD-343 for Settlement Cases: (Lump Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.) a.Must provide same data as in 2, a-g above. b.Prior to conversion computation must be provided. c.Lump Sum amount of Settlement, and if taxable or non-taxable. If you have any questions or require clarification on the above, please contact NFC’s Payroll/Personnel Operations at 504-255-4630.	Butler_IngridDA-0752-20-0060-I-1_Final_Order.pdf	2024-10-22	INGRID BUTLER v. FEDERAL DEPOSIT INSURANCE CORPORATION, MSPB Docket No. DA-0752-20-0060-I-1, October 22, 2024	DA-0752-20-0060-I-1	NP
405	https://www.mspb.gov/decisions/nonprecedential/Chendorain_JohnDC-0432-20-0568-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JOHN CHENDORAIN, Appellant, v. DEPARTMENT OF THE TREASURY, Agency.DOCKET NUMBER DC-0432-20-0568-I-1 DATE: October 22, 2024 THIS ORDER IS NONPRECEDENTIAL1 Kristen Farr , Esquire, Washington, D.C., for the appellant. Richard Johns , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member REMAND ORDER ¶1The appellant has filed a petition for review of the initial decision, which sustained his removal based on unacceptable performance pursuant to 5 U.S.C. chapter 43. For the reasons set forth below, we GRANT the petition for review, VACATE the initial decision, and REMAND the appeal to the Washington 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential 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). Regional Office for further adjudication consistent with Santos v. National Aeronautics and Space Administration , 990 F.3d 1355 (Fed. Cir. 2021). BACKGROUND ¶2The agency appointed the appellant to a GS-14 Information Technology Specialist position in November 2014. Initial Appeal File (IAF), Tab 4 at 12. For this position, the appellant’s performance was rated in four core competencies, known as critical elements: (1) communication; (2) customer service; (3) teamwork; and (4) technical competency. Id. at 63-65. At the end of the 2019 performance year, which ran from October 1, 2018, through September 30, 2019, his supervisor rated his performance unacceptable in the two critical elements of communication and teamwork. Id. at 23-29. On November 20, 2019, the agency issued the appellant a notice of unacceptable performance in those two critical elements, and it provided him with a 60-day performance improvement plan (PIP) to demonstrate acceptable performance or be demoted or removed. Id. at 30-36. The PIP notice set forth the requirements for the appellant to achieve fully successful performance in the communication and teamwork critical elements at issue over the duration of the PIP. Id. at 33-35. In addition to general guidance on those critical elements, the PIP notice also set forth several specific tasks for the appellant to complete during the PIP. Id. ¶3Under the communication critical element, the PIP notice set forth three tasks for the appellant to complete. IAF, Tab 4 at 33-34. Specifically, it required him to submit two written reports: the first concerning automated testing software and how it will be utilized by the development operations continuous integration/continuous development process, and the second concerning an assessment of the Structured Query Language server accompanied with recommendations for the Azure cloud. Id. The third task set forth in the PIP notice under the communication critical element required the appellant to complete an upgrade of the AdLib server, keeping the team and supervisor2 advised of his plan and progress, and subsequently decommissioning the older, legacy, AdLib server. Id. at 34. Under the teamwork critical element, the PIP notice set forth four tasks for the appellant to complete: the completion of the SharePoint cumulative update, closing out 3 of the 14 open Plans of Action and Milestones, training the administrative team on how to recover databases using a particular tool, and reducing all large content databases. Id. at 35. ¶4Following the conclusion of the PIP, on February 27 2020, the appellant’s supervisor informed the appellant that his performance in the critical elements of communication and teamwork remained unacceptable, and he proposed the appellant’s removal. IAF, Tab 4 at 15-22. Following the appellant’s written and oral responses, the deciding official issued a final decision sustaining the proposed removal and removing the appellant from Federal service, effective April 1, 2020. Id. at 48-62. ¶5The appellant appealed his removal, arguing that his performance was acceptable and that the removal action was the result of age discrimination, reprisal for reporting alleged discrimination, and harmful error. IAF, Tab 1 at 6. After holding the appellant’s requested hearing, the administrative judge issued an initial decision. IAF, Tab 19, Initial Decision (ID). She found that the agency proved the necessary elements, as they existed at the time, to support a chapter 43 performance-based removal by substantial evidence. ID at 9-25. She also concluded that the appellant failed to prove any of his affirmative defenses.2 ID at 25-27. Accordingly, she affirmed the appellant’s removal. ID at 1, 27. ¶6The appellant has filed a petition for review in which he reasserts his arguments from below that the agency failed to afford him a reasonable opportunity to improve his performance and failed to prove that his performance 2 The appellant does not challenge on review any of the administrative judge’s findings regarding his affirmative defenses. We have reviewed the record and conclude that these findings are sound. We discern no basis to disturb them. See 5 C.F.R. § 1201.115 (“The Board normally will consider only issues raised in a timely filed petition or cross petition for review.”). 3 was unacceptable. Petition for Review (PFR) File, Tab 1 at 7-11, 20-29. In this regard, he asserts that the administrative judge erred in her findings of fact and credibility determinations. Id. at 11-20. The agency has filed a response to the appellant’s petition for review. PFR File, Tab 3. DISCUSSION OF ARGUMENTS ON REVIEW ¶7When the initial decision was issued, the Board’s case law provided that, in a performance-based action under 5 U.S.C. chapter 43, an agency must establish by substantial evidence that: (1) the Office of Personnel Management (OPM) approved its performance management system; (2) the agency communicated to the appellant the performance standards and critical elements of her position; (3) the appellant’s performance standards are valid under 5 U.S.C. § 4302(c)(1); (4) the agency warned the appellant of the inadequacies of his performance during the appraisal period and gave him a reasonable opportunity to improve; and (5) the appellant’s performance remained unacceptable in at least one critical element. Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 13; White v Department of Veterans Affairs , 120 M.S.P.R. 405, ¶ 5 (2013); Lee v. Environmental Protection Agency , 115 M.S.P.R. 533, ¶ 5 (2010). As noted in the initial decision, the parties stipulated that the agency met its burden of proof regarding elements 1-3.3 ID at 9; IAF, Tab 15 at 3-4. 3 The Board’s regulations provide that the parties may stipulate to any matter of fact and that such stipulations satisfy a party’s burden of proving the fact alleged. See 5 C.F.R. § 1201.63; see also Anderson v. Tennessee Valley Authority , 77 M.S.P.R. 271, 275 (1998). Whether OPM approved the appraisal system and whether the performance standards were communicated to the appellant are pure questions of fact and were, thus, properly stipulated to, and the administrative judge properly relied on the stipulations. However, stipulations concerning matters of mixed fact and law are not binding on the Board, and the Board must resolve for itself whether the agency proved such matters. See Anderson, 77 M.S.P.R. at 275. Here, the issue of whether the appellant’s performance standards are valid constitutes a matter of mixed fact and law. Thus, we briefly address this element here. To be valid, performance standards must, to the maximum extent feasible, permit the accurate appraisal of performance based on objective criteria, and must be reasonable, realistic, attainable, and clearly stated in writing. Towne v. Department of the Air Force , 120 M.S.P.R. 239, ¶ 21 (2013). They must also be specific enough to provide an employee with a firm benchmark toward4 ¶8After review of the record and consideration of the appellant’s arguments, we discern no basis to disturb the administrative judge’s finding that the agency proved the elements required to establish a chapter 43 action under the law when the initial decision was issued. Specifically, the appellant argues, among other things, that the administrative judge failed to consider the testimony of three of his coworkers who had first-hand knowledge of his ability to communicate and work with the team, skills implicated by the critical elements highlighted in the PIP notice. PFR File, Tab 1 at 14-20. The appellant claims that these three witnesses “paint a very different picture” of him “that is more closely aligned to the documentary evidence in the record.” Id. at 20. However, he cites little documentary evidence to support his claim, and he does not directly address or identify how these testimonies contradict the well -explained findings of the administrative judge on the merits of the agency’s evidence of his performance. ID at 11-22; see Haebe v. Department of Justice , 288 F.3d 1288, 1301 (2002); Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997) (stating that the Board will not disturb an administrative judge’s findings when she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions on issues of credibility); Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359 (1987) (same). We therefore discern no error by the administrative judge in this regard. which to aim his performance and must be sufficiently precise to invoke general consensus as to their meaning and content. Id. Both the critical elements of communication and teamwork explain by what measures they are evaluated, and they clearly set forth benchmarks for how to meet differing ratings of performance. IAF, Tab 4 at 64-65. The record supports the stipulation that the performance standards are valid. Although the appellant appears to argue for the first time on review that the performance standards as set forth specifically in the PIP notice are not valid because they are “unreasonably high,” PFR File, Tab 1 at 10, we construe this argument as a disagreement concerning whether he achieved acceptable performance, which is a different discussion than the validity of the performance standard by which he was evaluated. 5 Remand is necessary to afford the parties an opportunity to submit evidence and argument regarding whether the appellant’s placement on a PIP was proper. ¶9Although the appellant has identified no basis for us to disturb the administrative judge’s findings, we nonetheless must remand this appeal for another reason. As noted above, during the pendency of the petition for review in this case, the Federal Circuit issued Santos, 990 F.3d at 1360-63, in which it held that, in addition to the five elements of the agency’s case set forth above, the agency must also justify the initiation of a PIP by proving by substantial evidence that the employee’s performance was unacceptable prior to the PIP. The Federal Circuit’s decision in Santos applies to all pending cases, including this one, regardless of when the events took place. Lee, 2022 MSPB 11, ¶ 16. ¶10We observe that the record in this case already contains evidence suggesting that the appellant’s performance prior to the initiation of the PIP was unacceptable. For instance, in December 2017, the appellant’s supervisor issued him a written counseling for inappropriate conduct towards fellow employees and contractors concerning three incidents: his failure to participate or give notice that he was unable to participate in a risk assessment phone call and two instances of unprofessional responses to emails. IAF, Tab 4 at 30-31; Tab 11 at 65-66. Additionally, in April 2019, the appellant’s supervisor issued him an oral warning, confirmed in writing, concerning several more alleged instances when his performance, among other things, “exhibited gross deficiencies” in the critical elements of communication and teamwork. IAF, Tab 4 at 30-31; Tab 11 at 71-74. Further, as stated above, the appellant was also rated unacceptable in the critical elements of communication and teamwork in his 2019 performance evaluation. IAF, Tab 4 at 24-25. On the other hand, however, the record also contains evidence that the appellant received a within grade increase—effective November 10, 2019—which was after the 2019 performance evaluation but before the implementation of the PIP. IAF, Tab 1 at 8. The documentation in support of that action states that the appellant’s “work performance is at an acceptable level6 of competence.” Id. To resolve this issue, we remand the appeal to give the parties the opportunity to present argument and additional evidence on whether the appellant’s performance during the period leading up to the PIP was unacceptable in one or more critical elements. See Lee, 2020 MSPB 11, ¶¶ 15-17. On remand, the administrative judge shall accept argument and evidence on this issue and shall hold a supplemental hearing if appropriate. Id., ¶ 17. ¶11The administrative judge shall then issue a new initial decision consistent with Santos. See id. If the agency makes the additional showing required under Santos on remand, the administrative judge may incorporate in the remand initial decision her prior findings on the other elements of the agency’s case, and the appellant’s affirmative defenses. See id. However, regardless of whether the agency meets its burden, if the argument or evidence on remand regarding the appellant’s pre-PIP performance affects the administrative judge’s analysis of the appellant’s affirmative defenses, the AJ should address such argument or evidence in the remand initial decision. See Spithaler v, Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980) (explaining that an initial decision must identify all material issues of fact and law, summarize the evidence, resolve issues of credibility, and include the administrative judge’s conclusions of law and his legal reasoning, as well as the authorities on which that reasoning rests). ORDER ¶12For the reasons discussed above, we remand this case to the Washington Regional Office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Chendorain_JohnDC-0432-20-0568-I-1_Remand_Order.pdf	2024-10-22	JOHN CHENDORAIN v. DEPARTMENT OF THE TREASURY, MSPB Docket No. DC-0432-20-0568-I-1, October 22, 2024	DC-0432-20-0568-I-1	NP
406	https://www.mspb.gov/decisions/nonprecedential/Ford_Keziah_M_DA-844E-20-0265-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD KEZIAH M. FORD, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER DA-844E-20-0265-I-1 DATE: October 22, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 McRae Cleaveland , Esquire, Dallas, Texas, for the appellant. Albert Pete Alston, Jr. , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which affirmed the reconsideration decision of the Office of Personnel Management (OPM) denying her application for disability retirement benefits under the Federal Employees’ Retirement System (FERS). For the reasons discussed below, we 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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). GRANT the appellant’s petition for review, REVERSE the initial decision, and ORDER OPM to award a disability retirement annuity to the appellant. ¶2The appellant began working with the Defense Logistics Agency (DLA) as a Document Management Assistant in 2014. Initial Appeal File (IAF), Tab 7 at 10-11, 32. Her duties included interacting with customers and procuring supplies and materials. Id. at 80. ¶3The appellant was diagnosed with collagenous colitis in 2017. IAF, Tab 12 at 61. The appellant was also diagnosed with a post-cervical spine injury with neck fusion and cervical radiculopathy. IAF, Tab 7 at 103. The collagenous colitis causes the appellant to experience frequent and severe gastrointestinal issues each day. IAF, Tab 11 at 27. The appellant’s post-cervical spine injury with fusion and cervical radiculopathy cause consistent and constant pain in the appellant’s neck, back, and shoulder. Id. at 28. ¶4The appellant applied for a FERS disability annuity on August 29, 2018. IAF, Tab 7 at 57-59. OPM issued an initial decision denying her application. Id. at 27. The appellant requested reconsideration of this decision, and OPM issued a reconsideration decision affirming its initial decision. Id. at 12-15, 21. In reaching this decision, OPM relied on the lack of documented service deficiencies for performance, attendance, or conduct and concluded that the appellant had not proven that she had a medical condition that was incompatible with her performance of useful and efficient service or retention in her position. Id. at 12-14. ¶5She appealed OPM’s reconsideration decision to the Board. IAF, Tab 1. The administrative judge issued an initial decision based on the written record, affirming OPM’s reconsideration decision, which denied the appellant’s application for a FERS disability retirement annuity. IAF, Tab 16, Initial Decision (ID) at 1-2. He concluded that the appellant did not establish that: (1) a deficiency in her performance, conduct, or attendance was caused by one or more of her medical conditions; (2) one or more of her medical conditions was2 incompatible with either useful and efficient service or retention in her position; and (3) accommodation of her medical conditions would be unreasonable. ID at 27-31. ¶6The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1 at 4-11. DISCUSSION OF ARGUMENTS ON REVIEW ¶7In an appeal from an OPM decision denying a FERS disability retirement application, the appellant must establish that she meets the following conditions: (1) she completed at least 18 months of creditable civilian service; (2) while employed in a position subject to FERS, she became disabled because of a medical condition, resulting in a deficiency in performance, conduct, or attendance, or, if there is no such deficiency, the disabling medical condition is incompatible with either useful and efficient service or retention in the position; (3) the disabling medical condition is expected to continue for at least 1 year from the date that the application for disability retirement benefits was filed; (4) accommodation of the disabling medical condition in the position held must be unreasonable; and (5) the employee did not decline a reasonable offer of reassignment to a vacant position. Chavez v. Office of Personnel Management , 111 M.S.P.R. 69, ¶ 6 (2009). Ultimately, the appellant bears the burden of proving by preponderant evidence her entitlement to disability retirement benefits. Id.; 5 C.F.R. § 1201.56(b)(2)(ii). ¶8The record shows, and it is not disputed, that the appellant had completed more than 18 months of civilian service creditable under FERS at the time she filed her application, her medical condition continued for at least 1 year from the date of her application, and she did not decline an offer of reassignment to a vacant position. IAF, Tab 7 at 44, Tab 14 at 111-12; ID at 27. Thus, the appellant’s entitlement to a disability retirement annuity depends on whether she3 had a disabling medical condition and whether accommodation of the disabling medical condition was unreasonable. The appellant established that her medical condition was incompatible with useful and efficient service or retention in the position. ¶9On review, the appellant argues that her medical documentation sufficiently demonstrated that she had a disabling medical condition that was incompatible with her position. PFR File, Tab 1 at 9. The second element of establishing entitlement to a disability retirement annuity requires demonstrating that the appellant’s disabling medical condition either: (1) caused a deficiency in performance, attendance, or conduct; or (2) is incompatible with useful and efficient service or retention in the position. Jackson v. Office of Personnel Management, 118 M.S.P.R. 6, ¶ 7 (2012); 5 C.F.R. § 844.103(a)(2); see 5 U.S.C. § 8451(a)(1)(B). As applicable here, under the second method, an individual can establish entitlement by showing that the medical condition is inconsistent with working in general, working in a particular line of work, or working in a particular type of setting. Jackson, 118 M.S.P.R. 6, ¶ 8. In determining an applicant’s entitlement to disability retirement, the Board considers all pertinent evidence, including objective clinical findings, diagnoses and medical opinions, subjective evidence of pain and disability, and evidence showing the effect of her condition on her ability to perform the duties of her position. Henderson v. Office of Personnel Management , 117 M.S.P.R. 313, ¶ 19 (2012). The ultimate question, based on all relevant evidence, is whether the individual’s medical impairments precluded her from rendering useful and efficient service in her position. Id., ¶ 20. ¶10The record here includes the position description for the appellant’s position as a Document Management Assistant. IAF, Tab 7 at 79. Among her duties were advising customers on the proper procedures on how to conduct business with DLA Document Services, responding to routine customer inquiries, and interfacing with DLA Document Services contracting representatives. Id. at 80.4 ¶11The appellant’s medical providers gave unambiguous statements that the appellant cannot continue to work. The appellant’s physician wrote that, “in my opinion, the patient should be retired with disability. She is totally unable to continue her job, even from home because of the severe disabilities with the collagenous colitis and the cervical radiculopathy.” Id. at 103. The appellant’s nurse practitioner echoed these remarks when she wrote that requiring the appellant to work would be impractical because “there are many days she can only lay in bed, and race to the restroom when necessary. . . . [R]equiring her to work at this point would cause extreme hardship, and ultimately exacerbate all of her chronic conditions.” IAF, Tab 14 at 112. ¶12At the time of her disability retirement application, the appellant had a reasonable accommodation that allowed her to telework from home 4 days per week and required her to go to the office 1 day per week. IAF, Tab 11 at 25. Due to her collagenous colitis, the appellant required numerous, sudden trips to the restroom for extended periods of time. Id. at 27. The appellant detailed the embarrassment and humiliation she experienced due to this condition. Id. The appellant reported that her condition affected not only her time in the office but also negatively impacted her commute to work. Id. at 28. ¶13One of the appellant’s job functions was to talk to customers on the telephone. Id. When she was at the office, the appellant’s symptoms were incompatible with holding telephone calls with customers. Id. The appellant spent significant portions of her mornings in the restroom at work, and her supervisor verbally reprimanded her on multiple occasions for being away from her computer for too long. Id. The appellant’s job duties also included performing inventory, but her post-cervical spine injury and cervical radiculopathy prevented her from being able to lift boxes or crawl under desks to confirm serial numbers. Id. In addition, the appellant’s cervical radiculopathy caused consistent and constant pain in her neck, back, and shoulder, as well as headaches, migraines, and blurry vision. Id. The appellant reported that her5 headaches could be so intense that she had to go to the emergency room for treatment. Id. Working in front of a computer under white light exacerbated these symptoms. Id. ¶14The appellant also experienced unique challenges when trying to telework from home. The appellant often found it necessary to work out of her bathroom due to her symptoms. Id. When she was not working from her bathroom, the appellant would work with the lights off and the curtains drawn, and would recline on the bed or couch to try to minimize the frequency of her headaches. Id. ¶15In light of the evidence discussed above, we find that the appellant has produced competent and unrefuted medical evidence that her conditions precluded her from performing the duties as a Document Management Assistant. Based on the evidence from the appellant’s medical providers and her own subjective description of her disabilities, we find that the appellant proved by preponderant evidence that she was precluded from useful and efficient service or retention in her position. The appellant established that accommodation of the disabling medical condition was unreasonable. ¶16The administrative judge found that “the agency provided effective reasonable accommodations to the appellant right up until the point she retired.” ID at 31 (citing IAF, Tab 7 at 43-44, Tab 11 at 25-29). The administrative judge referenced exhibits acknowledging the existence of the agency’s reasonable accommodation that permitted the appellant to telework 4 days per week, but neither of them describes the accommodation as “effective.” In addition, the administrative judge noted the lack of reassignment requests made by the appellant or other requests for reasonable accommodation. ID at 31. However, the appellant’s burden for this element is to prove that the accommodation for her position was unreasonable, not to request another position or accommodation. ¶17Although the agency assigned the appellant to a location apart from other employees on days she was required to work in the office, we find that the6 appellant’s affidavit persuasively explains why her conditions could not be reasonably accommodated in that setting. IAF, Tab 11 at 25, 27-28. When she teleworked, her conditions caused her to work out of her bathroom for significant periods of time. Id. at 28. When she was not working out of the bathroom, the appellant had to work in darkness from a supine position. Id. Taken together, we find that the appellant has provided preponderant evidence that she was physically unable to perform the duties of her position, and no reasonable accommodation could have assisted her in performing these duties. ¶18The appellant has therefore met all the criteria for disability retirement under FERS and is entitled to a disability retirement annuity. Accordingly, we reverse the initial decision and do not sustain OPM’s reconsideration decision. ORDER ¶19We ORDER OPM to award the appellant a disability retirement annuity. OPM must complete this action no later than 20 days after the date of this decision. ¶20We also ORDER OPM to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. We ORDER the appellant to provide all necessary information OPM requests to help it carry out the Board’s Order. The appellant, if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181(b). ¶21No later than 30 days after OPM tells the appellant it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision on this appeal if the appellant believes that OPM did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes OPM has not fully carried out the Board’s Order and should include the dates and results of any communications with OPM. See 5 C.F.R. § 1201.182(a).7 ¶22This is the final decision of the Merit Systems Protection Board in this appeal. 5 C.F.R. § 1201.113(c). NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO REQUEST ATTORNEY FEES AND COSTS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set 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 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. 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.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 petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 you9 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. 420 (2017). If you have a representative in this case, and 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. 10 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.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 court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 11 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.12	Ford_Keziah_M_DA-844E-20-0265-I-1_Final_Order.pdf	2024-10-22	KEZIAH M. FORD v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-844E-20-0265-I-1, October 22, 2024	DA-844E-20-0265-I-1	NP
407	https://www.mspb.gov/decisions/nonprecedential/Kissiar_JamesDC-1221-20-0453-W-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JAMES KISSIAR, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER DC-1221-20-0453-W-1 DATE: October 22, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Laura Nagel , Esquire, and Brian Tuttle , Esquire, Washington, D.C., for the appellant. Nicole E. Rapone , Esquire, Fort Gregg-Adams, Virginia, for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman Henry J. Kerner , Member *Member Kerner recused himself and did not participate in the adjudication of this appeal. FINAL ORDER 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 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 to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to VACATE the administrative judge’s finding that the agency proved by clear and convincing evidence that it would have taken the appellant’s agency-issued computer in November 2018 even absent his protected disclosures, we AFFIRM the initial decision. The administrative judge found that, of the three personnel actions the appellant alleged the agency took against him in retaliation for his protected disclosures, only his performance evaluation and his 5-day suspension were covered personnel actions under 5 U.S.C. § 2302(a)(2)(A), and that the taking of his computer was not. Initial Decision at 44-47. The administrative judge found, as to the latter action, that it did not, as the appellant alleged, constitute a significant change in his working conditions.2 5 U.S.C. § 2302(a)(2)(A)(xii). 2 The record reflects that the agency confiscated the appellant’s agency-issued computer for approximately 3 ½ months as part of an investigation into the appellant’s accessing of personally identifiable information on the computer. The administrative judge considered the evidence regarding the appellant’s ability to perform his duties during the period in question, including hearing testimony, and concluded that the appellant had failed to prove by preponderant evidence that his working conditions significantly changed during the period he was without a computer. Initial Decision at 44-46. The administrative judge explained that, although the record showed that the appellant had to make certain adjustments to complete his work while he did not have his computer,2 Notwithstanding, the administrative judge analyzed all three personnel actions in considering whether the agency proved by clear and convincing evidence that it would have taken those personnel actions even absent the appellant’s protected disclosures, concluding, as to all three, that the agency did so prove, Initial Decision at 48-59, and, on that basis, the administrative judge denied the appellant’s request for corrective action. Initial Decision at 2, 59. On review, inter alia, the appellant argues that the administrative judge erred in finding that the agency would have confiscated his computer in the absence of his protected disclosures. Petition for Review File, Tab 1 at 21-28. In the Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112-199, § 114(b), 126 Stat. 1465, 1472, Congress amended 5 U.S.C. § 1221(e)(2) to provide that corrective action cannot be ordered if, “ after a finding that a protected disclosure was a contributing factor” in the personnel action which was taken or is to be taken, the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure. Under this amendment, the Board may not proceed to the clear and convincing evidence test unless it has first made a finding that the appellant established his prima facie case. Clarke v. Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 (2014), aff’d, 623 F. App’x 1016 (Fed. Cir. 2015); see also S. Rep. No. 112-743 at 24 (2012). Here, after finding that the agency’s action in confiscating the appellant’s computer in November 2018 was not a covered personnel action under 5 U.S.C. the adjustments were not significant, and the appellant continued to perform at a Fully Successful level with only minor alterations to his working conditions. Id. at 46. In his petition for review, the appellant challenges the administrative judge’s finding that the removal of his computer was not a covered personnel action. Petition for Review File, Tab 1 at 19-21. We have considered the appellant’s argument, and the cases cited therein, but we find that has not provided a basis to disturb the administrative judge’s well-reasoned finding on this issue. See, e.g., Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 9 (2016) (finding no reason to disturb the administrative judge’s findings when the administrative judge considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions).3 § 2302(a)(2)(A)(xii), Initial Decision at 45-47, the administrative judge’s analysis of that claim should have ended. We therefore VACATE his further finding that the agency proved by clear and convincing evidence that it would have confiscated the appellant’s computer even absent his protected disclosures, Initial Decision at 49-53. As such, we do not address the appellant’s claims on review regarding that finding. NOTICE OF APPEAL RIGHTS3 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to 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.4 Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case,5 and 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 6 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 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 are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Kissiar_JamesDC-1221-20-0453-W-1_Final_Order.pdf	2024-10-22	JAMES KISSIAR v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-1221-20-0453-W-1, October 22, 2024	DC-1221-20-0453-W-1	NP
408	https://www.mspb.gov/decisions/nonprecedential/Castillo_Claudio_A_AT-1221-22-0417-W-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CLAUDIO A. CASTILLO, Appellant, v. U.S. AGENCY FOR GLOBAL MEDIA, Agency.DOCKET NUMBER AT-1221-22-0417-W-1 DATE: October 21, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Georgia A. Lawrence , Esquire, and Shaun C. Southworth , Esquire, Atlanta, Georgia, for the appellant. Samantha R. Duncan and Brooks Anderson , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member* *Member Kerner recused himself and did not participate in the adjudication of this appeal. FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which denied his request for corrective action in this individual right of action (IRA) 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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). appeal. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new 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 find that the appellant did not make a nonfrivolous allegation that his August 2021 OIG complaint was a contributing factor in his letter of reprimand and that he established that he engaged in protected activity with respect to his August 2021 OIG complaint but failed to establish that it was a contributing factor in his proposed removal, we AFFIRM the initial decision. BACKGROUND ¶2The appellant, a GS-12 Television Broadcast Technician, was previously employed with the agency’s Office of Cuba Broadcasting (OCB) in Miami, Florida, until he retired, effective February 26, 2022. Castillo v. U.S. Agency for Global Media, MSPB Docket No. AT-1221-22-0417-W-1, Initial Appeal File (IAF), Tab 6 at 6; Castillo v. U.S. Agency for Global Media , MSPB Docket No. AT-0752-22-0263-I-1, Initial Appeal File (0263 IAF), Tab 9 at 14. Beginning in May 2021, the appellant began expressing dissatisfaction with OCB’s decisions to move work from full-time employees to contractors, cancel projects, focus on what he believed were the wrong stories, and change the2 manner through which it distributed information to Cuba. IAF, Tab 6 at 13, 22-26. In doing so, he criticized OCB leadership, stating things like, “[t]hank God for our consistent incompetence,” making references to the agency’s “total misguided leadership,” and alleging that “we are making fools of ourselves again.” Id. at 22-23. The appellant alleged that on August 6, 2021, he filed a complaint with the agency’s Office of Inspector General (OIG). IAF, Tab 7 at 12. On August 10, 2021, the appellant’s first-level supervisor issued him a letter of reprimand for some of the aforementioned comments and for using inappropriate language in front of the OCB Director when he called his manager a “fucking lunatic.” IAF, Tab 43-45. In October 2021, the appellant participated in an OIG interview concerning journalistic standards and editorial independence. IAF, Tab 31 at 29-32. Subsequently, on January 5, 2022, the agency proposed the appellant’s removal based on charges of disrespectful behavior (7 specifications) and lack of candor (1 specification). IAF, Tab 14 at 5-10. In lieu of submitting a response to the proposed removal, the appellant retired effective February 26, 2022. 0263 IAF, Tab 9 at 14. ¶3After receiving a close-out letter from the Office of Special Counsel (OSC), the appellant filed a Board appeal alleging that his letter of reprimand and proposed removal constituted reprisal for his protected disclosures beginning in May 2021, his protected activity of filing an OIG complaint in August 2021, and participating in an OIG interview in October 2021. IAF, Tab 1 at 4. The administrative judge thereafter issued an order setting forth the appellant’s burden to establish jurisdiction over his appeal. IAF, Tab 3. After considering the parties’ responses, the administrative judge issued an order on jurisdiction, finding that the appellant had failed to nonfrivolously allege that he had made protected disclosures with respect to his May 13 and July 16, 2021 emails. IAF, Tab 15 at 4-7. The administrative judge also found that the appellant had nonfrivolously alleged that he had engaged in protected activity with respect to his August 2021 OIG complaint and his participation in the October 2021 OIG3 interview, but failed to nonfrivolously allege that they were a contributing factor in his letter of reprimand. Id. at 7-9. Lastly, he found that the appellant nonfrivolously alleged that his protected activity was a contributing factor in his proposed removal. Id. at 10. After holding a hearing, the administrative judge issued an initial decision, denying the appellant’s request for corrective action, finding that the agency proved by clear and convincing evidence that it would have proposed the appellant’s removal regardless of his October 2021 OIG interview, but the administrative judge did not consider the appellant’s August 2021 OIG complaint. ID at 1, 13.2 ¶4The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has opposed the appellant’s petition. PFR File, Tab 4. DISCUSSION OF ARGUMENTS ON REVIEW We agree with the administrative judge that the appellant did not make a nonfrivolous allegation that his August 2021 OIG complaint was a contributing factor in his letter of reprimand, but modify his analysis to consider evidence other than the knowledge/timing test. ¶5The Board has jurisdiction over an IRA appeal if the appellant has exhausted his remedies before OSC and makes nonfrivolous allegations that: (1) 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)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity was a contributing factor in the agency’s decision 2 Two weeks before filing his initial appeal in this matter, the appellant filed an involuntary retirement appeal with the Board’s regional office, Castillo v. U.S. Agency for Global Media , MSPB Docket No. AT-0752-22-0263-I-1. The administrative judge determined that there was “significant overlap in the factual basis” of those pending matters and that the parties had submitted relevant evidence “across both dockets.” ID at 1 n.1. The administrative judge found it appropriate to join the appeals for a hearing, but he issued a separate initial decision in each appeal. Id.; Castillo v. U.S. Agency for Global Media, MSPB Docket No. AT-0752-22-0263-I-1, Initial Decision (July 19, 2023). The appellant filed a separate petition for review of each initial decision, and the Board has issued separate final decisions in these appeals. Castillo v. U.S. Agency for Global Media , MSPB Docket No. AT-0752-22-0263-I-1, Final Order (Oct. 9, 2024).4 to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a). Gabel v. Department of Veterans Affairs , 2023 MSPB 4, ¶ 5. ¶6An appellant’s protected activity is a contributing factor if it in any way affects an agency’s decision to take, or fail to take, a personnel action. Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 14 (2012). One way an appellant may establish the contributing factor criterion is the knowledge/timing test, under which he submits evidence showing that the official taking the personnel action knew of the disclosure or activity and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure or activity was a contributing factor in the personnel action. Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 63. The Board has held that a personnel action taken within approximately 1 to 2 years of an appellant’s disclosures or activity satisfies the timing portion of the knowledge/timing test. Id. If an administrative judge determines that an appellant has failed to satisfy the knowledge/timing test, he shall consider other evidence, such as evidence pertaining to the strength or weakness of the agency’s reasons for taking the personnel action, whether the whistleblowing was personally directed at the officials taking the action, and whether these individuals had a desire or motive to retaliate against the appellant. Dorney, 117 M.S.P.R. 480, ¶ 15. ¶7On review, the appellant argues that the administrative judge failed to consider his August 6, 2021 communication or complaint to the agency’s OIG, and the August 10, 2021 letter of reprimand he received.3 PFR File, Tab 1 at 5, 8. In the administrative judge’s jurisdiction order, which he incorporated by reference in his initial decision, the administrative judge found that the appellant made a nonfrivolous allegation that he engaged in protected activity with respect 3 The appellant, who was represented by counsel below and on review, does not specifically challenge the administrative judge’s remaining jurisdictional findings, including that the appellant did not make a nonfrivolous allegation that his May 13, 2021 and July 16, 2021 communications were protected disclosures. PFR File, Tab 1 at 5, 8; IAF, Tab 15 at 5-7. Therefore, we will not revisit those communications here.5 to his August 6, 2021 complaint to the agency’s OIG and that he had exhausted that complaint and the letter of reprimand with OSC. IAF, Tab 15 at 2, 7; Tab 7 at 12; ID at 2-4. Because neither party challenges that finding, and we find it supported by the record, we decline to disturb it. The administrative judge also found that the appellant did not make a nonfrivolous allegation that his August 6, 2021 protected activity was a contributing factor in the decision to issue him a reprimand. IAF, Tab 15 at 9-10. In so finding, he reasoned that the appellant had not provided a factual basis to conclude that the official who issued the letter of reprimand, i.e., the appellant’s first-line supervisor, had any knowledge of the appellant’s contact with the agency’s OIG in August 2021. Id. at 9. However, the administrative judge did not consider evidence other than the knowledge/timing test. Id. Therefore, we modify the initial decision to address evidence other than the knowledge/timing test with respect to the letter of reprimand, but we still find no reason to disturb the administrative judge’s finding that the appellant failed to nonfrivolously allege that his August 2021 OIG complaint was a contributing factor in his letter of reprimand. ¶8With respect to the knowledge/timing test, the administrative judge found that the exact date of the August 2021 OIG complaint was unsupported by any sworn statement in the record. IAF, Tab 15 at 7. We disagree. In the appellant’s OSC complaint, which he submitted with his jurisdictional response and certified to the truthfulness of its statements, the appellant states that his OIG complaint was made on August 6, 2021. IAF, Tab 7 at 12. Therefore, the appellant’s August 10, 2021 letter of reprimand satisfies the timing portion of the knowledge/ timing test. However, we agree with the administrative judge that the appellant ultimately did not allege, either below or on review, that his first-level supervisor, who issued him the letter of reprimand, had any actual or constructive knowledge that the appellant made an OIG complaint before issuing him the letter of reprimand. IAF, Tab 6 at 16. 6 ¶9Next, we consider evidence other than knowledge/timing evidence. First, we find the evidence pertaining to the strength of the agency’s reasons for issuing the letter of reprimand is strong. At a minimum, it is undisputed that on July 15, 2021, the appellant approached the newly appointed OCB Director and twice referred to the Editor in Chief as a “lunatic.” IAF, Tab 6 at 28, Tab 10 at 34. Although the appellant denied that he used the phrase “fucking lunatic,” as alleged in the letter of reprimand, he admitted he used the word “lunatic.” IAF, Tab 6 at 28. We find that that statement alone is sufficient reason for the agency to issue the appellant a letter of reprimand. Secondly, although the appellant’s August 6, 2021 OIG complaint is not in the record, the appellant has not alleged below or on review that his first-level supervisor, who issued the letter of reprimand, was personally implicated in that complaint. To the contrary, in his sworn statement submitted with his jurisdictional response, the appellant claims that, in his August 2021 OIG complaint, he disclosed “gross mismanagement, fraud, waste, abuse, and danger to public safety,” including that “the employees within the graphic department and the anchor men/women in place were being paid and the work was not being done,” and that “there were false report about reports being live which was not the case.” IAF, Tab 6 at 16. In this statement, he attributes those alleged wrongdoings to the newly appointed OCB Director, “other heads of the department,” and the Editor in Chief, but not specifically his first-level supervisor. Id. at 14, 16. The appellant also has not alleged that either the OCB Director or the Editor in Chief were involved in the decision to issue him a letter of reprimand. Lastly, the appellant has not alleged below or on review specific facts from which one could conclude that his first-level supervisor harbored any retaliatory motive against him for his August 2021 OIG complaint. Thus, we agree with the administrative judge’s determination that the appellant has not made a nonfrivolous allegation that his August 2021 OIG complaint was a contributing factor in the agency’s decision to issue him a letter of reprimand. 7 We agree with the administrative judge that the appellant established a prima facie case of whistleblowing reprisal and that the agency proved by clear and convincing evidence that it would have proposed the appellant’s removal notwithstanding his whistleblower activity, and modify his analysis here. ¶10As noted above, in his jurisdictional order, the administrative judge found that the appellant made a nonfrivolous allegation of protected activity with respect to the appellant’s August 2021 OIG complaint; however, in his initial decision, he did not address this protected activity in his findings that the appellant established a prima facie case of whistleblowing reprisal and that the agency established by clear and convincing evidence that it would have taken the same personnel action in the absence of his protected activity. IAF, Tab 15 at 7; ID at 4-13. Therefore, we modify the administrative judge analysis to address it here. The appellant proved by preponderant evidence that he engaged in protected activity under 5 U.S.C. § 2302(b)(9). ¶11Under 5 U.S.C. § 2302(b)(9)(C), it is a prohibited personnel practice to take an action against an employee because that employee “disclos[ed] information to the Inspector General . . . of an agency, or the Special Counsel, in accordance with applicable provisions of law.” The administrative judge correctly found, and the parties do not dispute on review, that the appellant engaged in protected activity under 5 U.S.C. § 2302(b)(9) with respect to his participation in an interview with the OIG in October 2021. ID at 4. We also find that the appellant engaged in protected activity under 5 U.S.C. § 2302(b)(9) with respect to his August 2021 OIG complaint.4 See Pridgen, 2022 MSPB 31, ¶ 62 (clarifying that, under 5 U.S.C. § 2302(b)(9)(C), any disclosure of information to OSC or OIG is protected, regardless of the content). Thus, we find that the appellant established 4 Although the appellant’s August 2021 OIG complaint is not in the record, it appears to be separate and unrelated to the October 2021 OIG interview, which concerned journalistic standards and editorial independence arising from reports that occurred prior to the events at issue in this appeal. IAF, Tab 10 at 50-55. 8 that he engaged in protected activity with respect to his August 2021 OIG complaint and October 2021 OIG interview. The appellant proved by preponderant evidence that his October 2021 OIG interview was a contributing factor in his proposed removal, but not his August 2021 OIG complaint. ¶12As mentioned above, an appellant may establish the contributing factor criterion through the knowledge/timing test, or if an administrative judge determines that an appellant has failed to satisfy the knowledge/timing test, he shall consider the Dorney factors. Pridgen, 2022 MSPB 31, ¶ 63; Dorney, 117 M.S.P.R. 480, ¶ 15. Neither party disputes the administrative judge’s finding that the appellant proved that his October 2021 OIG interview was a contributing factor in his proposed removal under the knowledge/timing test, and we find that the record supports it. ID at 5-6; PFR File, Tab 4 at 9. Therefore, we modify the administrative judge’s analysis to address whether the appellant established that his August 2021 OIG complaint was a contributing factor in his proposed removal, but we ultimately find that the appellant did not. ¶13Here, the appellant’s August 6, 2021 OIG complaint occurred 5 months before his January 5, 2022 proposed removal, and therefore, satisfies the timing portion of the knowledge/timing test. However, the proposing official, i.e., the appellant’s first-line supervisor, testified during the hearing that he was not aware that the appellant contacted the agency’s OIG. IAF, Tab 37-1, HT at 2:07 (testimony of the proposing official). There is no allegation or evidence in the record or on review directly contradicting this testimony. Thus, we find that the appellant has not satisfied the knowledge portion of the knowledge/timing test. ¶14Next, we consider evidence other than knowledge/timing evidence. Here, the appellant has not alleged, much less established, that the August 2021 OIG complaint was personally directed at his first-level supervisor who proposed his removal, nor has he alleged or established that his first-level supervisor harbored retaliatory animus against him because of that complaint. Also, for the reasons9 stated in the initial decision and in the initial decision of the 0263 initial appeal, we agree with the administrative judge’s determination that the agency’s evidence supporting the proposed removal is strong. ID at 7-11; Castillo v. U.S. Agency for Global Media , MSPB Docket No. AT-0752-22-0263-I-1, Initial Decision (0263 ID) at 5-8 (July 19, 2023). For example, with respect to the first charge of disrespectful behavior towards his supervisor, the agency alleges in seven specifications that the appellant acted disrespectfully towards his first-level supervisor in multiple emails from September 20 through September 23, 2021, after he had already been reprimanded for his tone. IAF, Tab 6 at 33-36. A review of those emails shows that the appellant was disrespectful, sarcastic, and hostile toward his first-level supervisor in each communication. 0263 IAF, Tab 14 at 27-30, 33, 37, 39. Indeed, the appellant submitted emails from his union representative “strongly advis[ing] [him] against using certain language, comments, sarcasm etc.” in many of the emails he wrote to management, but he chose to do so anyway. 0263 IAF, Tab 4 at 29. Furthermore, during the hearing, the appellant did not deny the existence or tone of these emails and admitted they were aggressive, and thus admitted the substance of the first charge. ID at 7. ¶15On review, the appellant does not deny that he engaged in the charged misconduct for the first charge, but instead, he generally argues that the administrative judge failed to consider that his supervisor provoked his disrespectful conduct because he was being unjustly treated by the agency. PFR File, Tab 1 at 6-7; ID at 7, 11. However, the administrative judge considered and rejected this argument, noting that the appellant’s disciplinary history, including his 2-day suspension in 2013 for inappropriate and disrespectful conduct towards the then-OCB Director and misrepresentation of facts during an investigation, as well as his August 2021 letter of reprimand for using inappropriate language with the current OCB Director, belies his excuse that his inappropriate emails were provoked by the agency’s mistreatment, and instead, it demonstrate a pattern of repeated disrespectful behavior. ID at 10-11. We find no reason to disturb this10 finding. Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359 (1987) (finding that there is no reason to disturb the administrative judge’s conclusions when the initial decision reflects that he considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions). ¶16With respect to the second charge alleging that the appellant lacked candor when he emailed his supervisor falsely alleging that he had not received an email with an assignment, the appellant argues that the administrative judge erred in crediting the testimony of two information technology (IT) professionals who testified regarding the appellant’s receipt of the email. PFR File, Tab 1 at 6; ID at 8-9. He argues that the metadata provided with the proposed removal suggests that the agency’s Human Resources (HR) employee, J.C., who had access to his emails, deleted the email in question. PFR File, Tab 1 at 6. The administrative judge, however, considered and rejected the appellant’s version of events as improbable, noting that, for the appellant’s allegations to be true, J.C. would have had to have known that the appellant would be sent a specific email, delete that email before the appellant saw it, and foreseen that the appellant would have sent his first-line supervisor a preemptive email accusing him of preparing to write a “disciplinary memo[] with false accusations” based on the perceived failure to receive the email. ID at 9. Instead, he credited the testimony of the two IT professionals who testified that the email system had been working that day and that the appellant received the email at issue. ID at 8-9. He further credited the testimony of one of those IT professionals, the agency’s primary email administrator, who testified that the server logs showed that seven to eight emails were deleted from the appellant’s account. 0263 ID at 6. Although he could not confirm with absolute certainty that the appellant, and not J.C., had deleted the email, he credibly testified that a Washington, D.C. IP address connected to the deletion did not evidence that someone other than the appellant deleted the email, explaining that OCB’s system was connected to the agency’s11 headquarters in Washington, D.C. ID at 9. Thus, an internal IP address appearing to originate in Washington, D.C. could still have originated in Miami, Florida because OCB’s internet traffic was also routed through servers in Washington, D.C. 0263 ID at 7. Moreover, he found credible the IT professional’s explanation that it was likely J.C. was given access to the appellant’s email in connection with the investigation into the charged conduct, as agency HR employees and management are authorized to ask for such access. Id. Because the administrative judge determined that the basis of the charge was the appellant’s false representation he never received the email, and the deletion of the email was peripheral to the charge, he found that the agency had valid reasons for the lack of candor charge in the proposed removal. 0263 ID at 7. 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). Here, the administrative judge’s credibility determinations were based on his observation and assessment of the agency officials’ demeanor during the hearing. See Purifoy v. Department of Veterans Affairs , 838 F.3d 1367, 1372-73 (Fed. Cir. 2016) (stating that, even if demeanor is not explicitly discussed by an administrative judge, assessing a witness’s credibility involves consideration of various factors, including a witness’s demeanor). Although the appellant disagrees with the credibility determinations, we find his challenges are not sufficiently sound to overturn them. Thus, we find that the appellant has not established that his August 2021 OIG complaint was a contributing factor in his proposed removal. Therefore, he has only established that his October 2021 OIG interview was a contributing factor in his proposed removal. 12 The agency proved by clear and convincing evidence that it would have removed the appellant notwithstanding the appellant’s October 2021 OIG interview.5 ¶17On review, the appellant generally challenges the administrative judge’s finding that the agency proved by clear and convincing evidence that it would have proposed the appellant’s removal notwithstanding his participation in the October 2021 OIG interview. PFR File, Tab 1 at 5; ID at 6-13. The administrative judge’s findings are well reasoned and supported by the record; thus, we decline to disturb them. ¶18In Carr v. Social Security Administration , 185 F.3d 1318, 1323, the U.S. Court of Appeals for the Federal Circuit set forth a number of factors the Board should consider in determining whether the agency met its burden of proving by clear and convincing evidence that it would have taken the challenged action in the absence of the appellant’s protected whistleblowing activity, including the following: (1) the strength of the agency’s evidence in support of the action; (2) the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and (3) any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated. The Board does not view these factors as discrete elements, each of which the agency must prove by clear and convincing evidence, but rather weighs these factors together to determine whether the evidence is clear and convincing as a whole. Lu v. Department of Homeland Security , 122 M.S.P.R. 335, ¶ 7 (2015). 5 The administrative judge appears to have applied the preponderant evidence standard in finding that the agency proved its charges, rather than a clear and convincing evidence standard. ID at 9. Nevertheless, because we discern no error with the administrative judge’s analysis or finding that the agency had strong evidence in support of its decision to propose the appellant’s removal, we find that any such error in identifying the standard is harmless. See 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).13 ¶19Regarding the first Carr factor, i.e., the strength of the agency’s evidence in support of its action, for the reasons stated in the initial decision and discussed above, we agree with the administrative judge’s finding that the agency had sufficiently strong evidence to support the proposed removal. ID at 7-11. This is especially true in light of the appellant’s prior discipline and pattern of engaging in similar misconduct, including his August 2021 letter of reprimand for repeatedly using inappropriate language in his communications with management and his 2-day suspension in July 2013 for disrespectful behavior towards another OCB Director. 0263 IAF, Tab 17 at 4-8, 11-13. Accordingly, this factor weighs in favor of the agency. ¶20Regarding the second Carr factor, i.e., the existence and strength of any motive to retaliate on the part of the agency officials involved in the decision, for the reasons stated in the initial decision, we find no reason to disturb the administrative judge’s findings that agency officials involved in the proposed removal had little motive to retaliate against the appellant. ID at 11-12. The administrative judge credited the testimony of the OCB Deputy Director, who was designated as the deciding official in the appellant’s proposed removal, and testified that the OIG interview concerned journalistic standards and editorial independence arising from reports that occurred years earlier in October 2020 and that he had suggested that OIG interview the appellant along with most of his coworkers. ID at 11; IAF, Tab 31 at 29-32. The administrative judge reasoned that it makes little sense for agency managers to harbor retaliatory motive towards the appellant for participating in an investigation when they themselves suggested he participate. ID at 11. Also, the appellant has neither alleged nor presented evidence that the appellant’s coworkers, who were also interviewed, were retaliated against or that he played an important role that was distinguishable to his coworkers. ID at 11-12. Accordingly, this factor weighs in favor of the agency.14 ¶21Regarding the third Carr factor, i.e., evidence that the agency takes similar actions against employees who did not engage in protected whistleblower activity but are otherwise similarly situated, the appellant does not specifically challenge the administrative judge’s finding that this factor is neutral. ID at 12-13. For the reasons stated in the initial decision, we agree that this factor is neutral. ¶22Ultimately, considering the above factors and the record as a whole, particularly in light of the fact that the appellant had been disciplined twice before for similar misconduct, we agree that the agency proved by clear and convincing evidence that it would have proposed the appellant’s removal absent his protected activity. See Carr, 185 F.3d at 1326 (noting that the whistleblower protection statutes are “not meant to protect employees from their own misconduct”).6 Accordingly, we affirm the initial decision. NOTICE OF APPEAL RIGHTS7 The initial decision, as supplemented by this Final Order, constitutes the Boards 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 6 Lastly, the appellant argues that the administrative judge failed to consider that the proposed removal was part of a campaign to coerce him to retire that included misleading him or failing to correct his erroneous belief that he would lose his pension and retirement benefits if he was removed. PFR File, Tab 1 at 7-8. In the appellant’s 0263 appeal, the administrative judge dismissed the appellant’s involuntary retirement claim for lack of jurisdiction, finding that the appellant did not establish that his retirement was the product of coercion or misinformation. 0263 ID at 1, 8, 14. We affirmed that decision. Castillo, AT-0752-22-0263-I-1, Final Order at 1-2. Thus, because a voluntary retirement is not a personnel action as defined under 5 C.F.R. § 1209.4(a), the administrative judge properly did not consider it. 7 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.15 the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish 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 http://www.mspb.gov/probono for information regarding pro bono representation16 for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case, and 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 file17 with the EEOC no later than 30 calendar days after your representative 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.8 The court of appeals must receive your petition for 8 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain 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 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.19	Castillo_Claudio_A_AT-1221-22-0417-W-1_Final_Order.pdf	2024-10-21	null	AT-1221-22-0417-W-1	NP
409	https://www.mspb.gov/decisions/nonprecedential/Price_Joseph_G_SF-0752-23-0195-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JOSEPH G. PRICE, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER SF-0752-23-0195-I-1 DATE: October 18, 2024 THIS ORDER IS NONPRECEDENTIAL1 Joseph G. Price , Tacoma, Washington, pro se. Jennifer A. Brewer and Burke Josslin , Seattle, Washington, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member REMAND ORDER ¶1The appellant has filed a petition for review of the initial decision, which affirmed his removal for unacceptable conduct. For the reasons discussed below, we GRANT the appellant’s petition for review. We AFFIRM the initial decision to the extent that the administrative judge determined that the agency proved the charge of unacceptable conduct as MODIFIED to correct the misstatement that 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the appellant “waived” his request for a hearing. We VACATE the initial decision to the extent that the administrative judge found that the appellant did not raise any affirmative defenses, determined that the agency proved nexus, and sustained the penalty of removal and REMAND the case to the regional office for further adjudication of the appellant’s whistleblower reprisal claim in accordance with this Remand Order. BACKGROUND ¶2The appellant was employed by the agency as a GS-5 Nursing Assistant, assigned to the agency’s American Lake Community Living Center (CLC) in Takoma, Washington. Initial Appeal File (IAF), Tab 1 at 1, Tab 6 at 9, 11. In this position, he was responsible for providing direct patient care to veterans at the CLC. IAF, Tab 6 at 275. ¶3According to the agency, on September 16, 2021, the appellant “subjected a [v]eteran patient who has a mental/physical impairment and inability to adequately provide care for himself to humiliation by lifting his gown in the common area in the [presence] of other employees . . . and stated ‘you[’re] full of piss’ . . . instead of following standard protocol.” Id. at 260. After receiving email complaints from other employees about the incident, the Nurse Manager of CLC’s Patient Care Services conducted a fact-finding investigation and recommended that the appellant be removed from the CLC. IAF, Tab 6 at 189-191. Subsequently, an Administrative Investigation Board (AIB) conducted an investigation and concluded that the appellant had subjected the patient to humiliating treatment. IAF, Tab 6 at 11-14, 187-88. Based on the September 16, 2021 incident, the agency removed the appellant effective January 10, 2023, for unacceptable conduct. IAF, Tab 6 at 271-74, Tab 6 at 8. ¶4The appellant filed an appeal of his removal with the Board. IAF, Tab 1 at 2. He appeared to initially raise a claim that he was terminated for reporting a patient safety concern to the agency. IAF, Tab 1 at 6, Tab 9 at 3. On March 28,2 2023, the administrative judge issued an order in which she acknowledged this potential whistleblower reprisal claim and advised the parties of their respective burdens regarding such a claim. IAF, Tab 9 at 3-6. She instructed the parties to respond regarding any whistleblower reprisal claim by May 2, 2023. Id. at 6. On April 18, 2023, the appellant submitted a pleading titled “Statement,” in which he asserted that, in conjunction with the incident in question, he reported to the agency that the patient was being neglected and a lack of concern by those present. IAF, Tab 15 at 5-6. Notwithstanding this submission, the administrative judge later concluded that the appellant was not asserting an affirmative defense. IAF, Tab 27 at 2-3. ¶5The administrative judge scheduled the appellant’s requested hearing. IAF, Tab 1 at 2, Tab 27 at 4. She later canceled the hearing as a sanction after the appellant neither appeared nor showed good cause for his absence. IAF, Tabs 35, 37-38. The administrative judge issued an initial decision affirming the appellant’s removal on the written record. IAF, Tab 43, Initial Decision (ID) at 1-2, 11. She determined that the agency proved its charge, nexus, and the reasonableness of the penalty of removal. ID at 6-10. ¶6The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has responded to the petition for review. PFR File, Tab 4. DISCUSSION OF ARGUMENTS ON REVIEW We modify the initial decision to clarify the administrative judge’s misstatement that the appellant waived his request for a hearing. ¶7The initial decision indicated that the appellant had waived his right to a hearing. ID at 1. The record reflects that the administrative judge canceled the hearing after the appellant failed to attend the hearing without good cause. IAF, Tab 34 at 1, Tab 38 at 1-2. It is well established that an appellant may forfeit the opportunity to a hearing by failing to attend without good cause. Callahan v.3 Department of the Navy , 748 F.2d 1556, 1557-59 (Fed. Cir. 1984); Social Security Administration v. Dantoni , 77 M.S.P.R. 516, 520, aff’d per curiam , 173 F.3d 435 (Fed. Cir. 1998) (Table). In accordance with the Merit Systems Protection Board Judges Handbook (Judges Handbook), the regional office contacted the appellant, provided the video connection information, and then waited a reasonable amount of time for the appellant to join the hearing. IAF, Tab 34; see Judges Handbook, ch. 4(13)(a). After the appellant did not attend the hearing, the administrative judge issued a show cause order providing the appellant with an opportunity to demonstrate good cause for his absence, to which the appellant responded and cited computer issues. IAF, Tab 34 at 1, Tab 37 at 3; see Judges Handbook, ch. 4(13)(a). He did not explain why he did not call the regional office to report his difficulties. IAF, Tab 37. The administrative judge issued a second order finding that the appellant failed to show good cause, that he had forfeited his right to a hearing, and that the appeal would be adjudicated on the written record only. IAF, Tab 38 at 1-2. ¶8We discern no error in the administrative judge’s finding that the appellant failed to establish good cause for his failure to attend the hearing, and the parties have not challenged the cancelation of the hearing on review. Nonetheless, for purposes of clarity, we modify the initial decision to reflect that the appellant forfeited, rather than waived, his hearing right. The administrative judge properly found that the agency met its burden to prove its unacceptable conduct charge. ¶9On review, the appellant disagrees with the administrative judge’s decision not to credit the appellant’s statements denying the alleged misconduct. PFR File, Tab 1 at 4; ID at 6-8. We affirm the administrative judge’s findings. A charge of unacceptable conduct has no specific elements of proof; the agency establishes the charge by proving that the appellant committed the acts alleged and that the conduct was improper, unsuitable, or detracted from the appellant’s character or reputation. Canada v. Department of Homeland Security ,4 113 M.S.P.R. 509, ¶ 9 (2010); Miles v. Department of the Army , 55 M.S.P.R. 633, 637 (1992). ¶10In support of its charge, the agency alleged that, on September 16, 2021, the appellant humiliated a patient with dementia by lifting his gown in a common area in the presence of others and told the patient he was “full of piss” or words to that effect. IAF, Tab 4 at 2. The administrative judge concluded that the agency proved the specified conduct and that the appellant’s actions were unacceptable. ID at 6-8. We discern no basis to disturb the administrative judge’s findings. ¶11The appellant’s petition disagrees with the administrative judge’s findings that he engaged in the alleged misconduct by stating that his version of events should have been credited because, as a veteran, he does not lie. PFR File, Tab 1 at 4. We find this assertion unavailing. When, as here, an administrative judge’s findings are based on the written record and not based on the observation of 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, 1298-1302 (Fed. Cir. 2002). However, the appellant provides no significant reason in his petition for review for the Board to do so. PFR File, Tab 1 at 4. Ultimately, the initial decision reflects that the administrative judge considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions on the issue of credibility. ID at 6-8; see, e.g., Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105-06 (1997); Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359 (1987). ¶12The administrative judge credited the eyewitness accounts of two nurses that the patient was sleeping on the evening in question when the appellant touched the patient, startling him, over the appellant’s statement that the veteran was wide awake and asked for the appellant’s help, and that the appellant did not have physical contact with the patient. ID at 6-7. The administrative judge acknowledged the appellant’s claim that the nurses fabricated their accounts but5 was not persuaded. ID at 7-8; IAF, Tab 1 at 6, Tab 41. In crediting the agency’s eyewitness accounts, the administrative judge considered and applied the factors set forth in Borninkhof v. Department of Justice , 5 M.S.P.R. 77, 83-84 (1981); ID at 2, 7-8. In Borninkhof, 5 M.S.P.R. at 83-84, the Board identified factors affecting the weight to be accorded to hearsay evidence. Most relevant to the administrative judge’s assessment, these factors include the consistency of witnesses’ accounts with each other and their own prior statements and whether the witnesses were disinterested. Id. at 87. Here, the record contains emails, statements from the fact-finding investigation, and transcripts of interviews from the AIB investigation, which all support the nurses’ account of the incident. ID at 6-8; IAF, Tab 6 at 98-101, 123, 126-28, 162, 165 -68, 198-209, 216-18. The administrative judge observed that, while their accounts were similar, they were not identical, and they were “consistent with each other in most material aspects” and consistent with the statements of two nursing assistants who witnessed portions of the incident. ID at 7. The two nurses described the patient as sleeping in a wheelchair across from the nurses’ station and stated that the appellant touched or startled the patient awake, lifted up his gown, and remarked on how wet he was due to incontinence. ID at 7-8; IAF, Tab 6 at 100, 199, 126-28, 203, 228. In contrast, the appellant alleged that “[t]he patient was awake, partially dressed, no pants, in a wheelchair, a large puddle of urine under the patient extending beyond the wheelchair, the patient [was] in an agitated state yelling for help.” IAF, Tab 6 at 48, 55-59, 77, 194-97, Tab 15 at 4. The appellant has consistently denied his own misconduct, but his denials are not corroborated by other witnesses. Thus, the administrative judge properly found that the nurses’ accounts were more credible than the appellant’s. ID at 7-8. We remand the appellant’s whistleblower reprisal claim for adjudication. ¶13On review, the appellant argues that the agency removed him in reprisal for his disclosures that agency staff violated patient confidentiality and the standard of patient care. PFR File, Tab 1 at 4. The appellant raised this affirmative6 defense below. IAF, Tab 1 at 6, Tab 15. However, the administrative judge stated in her initial decision that the appellant “raised no affirmative defenses.” ID at 2. ¶14When an administrative judge has not addressed an affirmative defense, the Board has set forth a nonexhaustive list of factors to be considered in determining whether the appellant demonstrated his intent to continue pursuing his affirmative defense such that remand is necessary. See Thurman v. U.S. Postal Service, 2022 MSPB 21, ¶¶ 17-18, 28. These factors include: (1) the thoroughness and clarity with which the appellant raised an affirmative defense; (2) the degree to which the appellant continued to pursue the affirmative defense in the proceedings below after initially raising it; (3) whether the appellant objected to a summary of the issues to be decided that failed to include the potential affirmative defense when specifically afforded an opportunity to object and the consequences of the failure were made clear; (4) whether the appellant raised the affirmative defense or the administrative judge’s processing of the affirmative defense claim in the petition for review; (5) whether the appellant was represented during the course of the appeal before the administrative judge and on petition for review, and if not, the level of knowledge of Board proceedings possessed by the appellant; and (6) the likelihood that the presumptive abandonment of the affirmative defense was the product of confusion, or misleading or incorrect information provided by the agency or the Board. Id., ¶ 18. Applying these factors, we find that remand is necessary for adjudication of the appellant’s affirmative defense. ¶15Applying the first factor, we conclude that the appellant clearly raised his whistleblower reprisal claim. He stated in his initial appeal that the alleged “incident” on September 16, 2021, which led to his removal, was “fabricat[ed]” in retaliation for his reports of patient neglect. IAF, Tab 1 at 6; see Melnick v. Department of Housing and Urban Development , 42 M.S.P.R. 93, 97 (1989) (finding that pro se appellants are not required to plead the issues with the7 precision required of an attorney in a judicial proceeding), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table). The administrative judge held a telephonic status conference, which both parties attended. IAF, Tab 9 at 1. In the March 28, 2023 summary of this conference, the administrative judge indicated that the appellant “explained that he reported an issue of patient safety to his chain of command and was terminated in retaliation for reporting the issue.” Id. at 3. She ordered him to provide specific information regarding his whistleblower reprisal claim. Id. at 6. ¶16Further, despite stating in the initial decision that the appellant did not raise a whistleblower reprisal affirmative defense, the administrative judge recognized in the initial decision that the appellant alleged that he reported to management that a nurse fabricated the appellant’s misconduct “in retaliation for the appellant reporting her for neglecting a . . . patient.” ID at 4. The administrative judge cited to an email in the record in which the appellant alleged that he reported a patient in a state of neglect to a supervisor on September 16, 2021, apparently referring to the same patient incident that led to his removal. Id. (citing IAF, Tab 6 at 223). In sustaining the charge, the administrative judge concluded that “even if the evening shift should have been more attentive to the patient’s incontinence, as the appellant argues, this simply deflects from his own degrading interaction with the patient.” ID at 8. Therefore, we conclude that the appellant clearly raised his whistleblower reprisal affirmative defense. ¶17Applying the second factor, the degree to which the appellant continued to pursue his affirmative defense in the proceedings below after initially raising it, we note that after raising his claim in his initial appeal, the appellant again raised it at the March 28, 2023 telephonic status conference. IAF, Tab 1 at 6, Tab 9 at 6. He also filed a timely response to the administrative judge’s order of the same date, providing some of the information that she requested in connection with this defense. IAF, Tab 1 at 6, Tab 9 at 6, Tab 15. Specifically, he responded that he encountered “a patient in a neglected state and requiring immediate care” and that8 he reported the condition in which he found the patient to a supervisor and two nurses that same evening. IAF, Tab 15 at 5-6. ¶18The third Thurman factor, whether the appellant objected to a summary of the issues to be decided that failed to include the potential affirmative defense when specifically afforded an opportunity to object and the consequences of the failure were made clear, is less favorable to the appellant. On May 5, 2023, the administrative judge held a prehearing conference. IAF, Tab 27 at 1. She subsequently issued an order summarizing the issues to be adjudicated. Id. at 5. In the order, the administrative judge stated that she inquired with the appellant as to whether he was asserting any claims, other than his disagreement with the charged misconduct, and he did not identify any. Id. at 2. She provided the parties with an opportunity to object and warned that if they failed to do so, any objection “will be deemed waived.” Id. at 7. Neither party objected. ¶19Applying the fourth factor, whether the appellant raised his affirmative defense in his petition for review, we find that he did so. PFR File, Tab 1 at 4. Regarding the fifth factor, we observe that the appellant has been pro se throughout the Board proceedings, and there is no reason to believe he is particularly knowledgeable about Board procedures. ¶20Concerning the sixth factor, the administrative judge and the agency did not provide misleading or incorrect information. However, the administrative judge’s determination that the appellant abandoned his whistleblower reprisal claim was exacerbated by his pro se status and the administrative judge’s failure to recognize his response to her instructions regarding his affirmative defenses and to acknowledge that he had previously provided information responsive to the agency’s discovery. See Thurman, 2022 MSPB 21, ¶¶ 25-26 (recognizing that the Board has granted leniency to appellants in circumstances in which they obviously were confused or mistaken about the Board’s instructions, which may be especially true if the appellant is proceeding pro se). In particular, the record reflects that the agency and the administrative judge attempted to solicit9 information about the date, substance, and recipients of the appellant’s disclosures that the appellant had provided on April 18, 2023. Compare IAF, Tab 9 at 6, Tab 17 at 17, Tab 23 at 2, Tab 24 at 3, Tab 26 at 4-5, with IAF, Tab 15 at 5-6. Further, the administrative judge granted the agency’s motion to compel discovery in part. IAF, Tab 23 at 1. As relevant here, she ordered the appellant to respond to the agency’s interrogatory no. 11. Id. at 2-3. In response, the appellant declined to “make changes or modifications” to his prior answer that he had “no statement,” expressing his belief that he had “already responded.” IAF, Tab 17 at 17, Tab 24 at 3, Tab 26 at 5. The record includes responsive statements and emails by the appellant identifying his reports of alleged neglect of the patient on September 16, 2023, and thereafter; to whom he made his claims of neglect; when he made them; and why he believed his reports led to his removal. IAF, Tab 1 at 6 at 51-55, 65-66, 69, 80, 220, 222-25, 228, 231, 233, Tab 15 at 5-6.2 Considering all of the factors above, we conclude that this pro se appellant did not waive or abandon his whistleblower reprisal claim. He clearly raised and pursued his defense both below and on review, responded to the administrative judge’s order seeking details concerning his claim, and appears to have been confused regarding how to preserve his claim. Accordingly, on remand the administrative judge shall adjudicate this affirmative defense. ¶21The administrative judge should remind the parties of their burdens and elements of proof in connection with a whistleblower reprisal claim and provide them with an opportunity to submit relevant argument and evidence. IAF, Tab 9 at 3-6; see Guzman v. Department of Veterans Affairs , 114 M.S.P.R. 566, ¶¶ 19, 21 (2010). When whistleblower retaliation claims are made in the context of an 2 The agency moved for sanctions for the appellant’s failure to provide information regarding his affirmative defense. IAF, Tab 26 at 4-5. However, the administrative judge found that sanctions were not appropriate because the appellant was not asserting an affirmative defense. IAF, Tab 27 at 2-3. In light of our determination that the appellant has preserved his whistleblower reprisal claim, the administrative judge should set a date for the agency to renew its motion for sanctions regarding interrogatory no. 11, if it so desires. The agency must identify in any such renewed motion specifically what information the appellant has thus far failed to provide.10 otherwise appealable action, as here, the appellant must prove by preponderant evidence that he made a protected disclosure or engaged in protected activity and that the disclosure or activity was a contributing factor in the personnel action at issue. 5 U.S.C. § 1221(e)(1); Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 49. If the appellant makes this showing, the burden shifts to the agency to prove by clear and convincing evidence that it would have taken the personnel action absent the protected disclosure or activity. 5 U.S.C. § 1221(e) (2); Pridgen, 2022 MSPB 31, ¶ 49. ¶22The administrative judge concluded in the initial decision that the appellant’s reports of patient neglect were an attempt to avoid responsibility for his own misconduct. ID at 9. However, protected whistleblowing occurs when an appellant makes a disclosure that he reasonably believes evidences a violation of law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety. 5 U.S.C. § 2302(b)(8); Pridgen, 2022 MSPB 31, ¶ 52. While motive may be relevant to the determination of a reasonable belief, a disclosure is not excluded from protection based on an appellant’s motive in making it. Ayers v. Department of the Army, 123 M.S.P.R. 11, ¶ 20 (2015). On remand, the administrative judge should provide the parties with an opportunity to present additional evidence and argument on the appellant’s whistleblower reprisal claim and make findings as to that claim under the standards discussed above. ¶23The parties have not challenged the administrative judge’s determination that the agency proved that its adverse action promoted the efficiency of the service and that the penalty of removal was within the tolerable limits of reasonableness. ID at 9-10. If the appellant does not prevail on his affirmative defense on remand, the administrative judge may incorporate into the new initial decision her original findings as to the charge, nexus, and the reasonableness of the penalty, as appropriate, taking into consideration any new testimony or other evidence that the parties introduce. See Guzman, 114 M.S.P.R. 566, ¶ 21. 11 ORDER ¶24For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.12	Price_Joseph_G_SF-0752-23-0195-I-1_Remand_Order.pdf	2024-10-18	JOSEPH G. PRICE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0752-23-0195-I-1, October 18, 2024	SF-0752-23-0195-I-1	NP
410	https://www.mspb.gov/decisions/nonprecedential/Grissom_Mark_D_AT-0714-21-0175-M-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MARK GRISSOM, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER AT-0714-21-0175-M-1 DATE: October 18, 2024 THIS ORDER IS NONPRECEDENTIAL1 Mark Grissom , Maylene, Alabama, pro se. W. Robert Boulware , Montgomery, Alabama, for the agency. Sophia Haynes , Esquire, Decatur, Georgia, for the agency. Dana C. Heck , St. Petersburg, Florida, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member* Member Kerner recused himself and did not participate in the adjudication of this appeal. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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). REMAND ORDER ¶1The appellant has filed a petition for review of the initial decision, which remanded to the agency for consideration of the factors enumerated in Douglas v. Veterans Administration , 5 M.S.P.R. 280 (1981). Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review, AFFIRM the initial decision, and REMAND the case to the Atlanta Regional Office for further adjudication in accordance with this Remand Order. BACKGROUND ¶2The agency removed the appellant for failure to follow instructions pursuant to 38 U.S.C. § 714. Grissom v. Department of Veterans Affairs , MSPB Docket No. AT-0714-21-0175-I-1, Initial Appeal File, Tab 25, Initial Decision at 2. The administrative judge issued an initial decision finding that the agency proved its charge by substantial evidence, denying the appellant’s affirmative defense of whistleblower reprisal, and finding the penalty of removal to be reasonable. Id. at 2-40. The appellant appealed the final order to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), and the court issued an opinion affirming the administrative judge’s findings that the agency proved its charge and that the2 appellant failed to prove his affirmative defenses. Grissom v. Department of Veterans Affairs , No. 2021-2124, 2022 WL 17334715 (Fed. Cir. Nov. 30, 2022); MSPB Docket No. AT-0714-21-0175-M-1, Remand File (M -1 RF), Tab 1. The Federal Circuit observed that the agency deciding official testified that he did not believe that he considered the Douglas factors2 as required, and it therefore vacated the administrative judge’s penalty analysis and remanded to the Board to remand to the agency for a redetermination of the penalty. Grissom, 2022 WL 17334715, at 17 -18. Upon return to the regional office, the administrative judge issued an initial decision remanding to the agency for proper consideration of the Douglas factors. M-1 RF, Tab 6, Initial Decision. The appellant has filed a petition for review of the initial decision and 29 supplements. Grissom v. Department of Veterans Affairs , MSPB Docket No. AT-0714-21-0175-M-1, Petition for Review (M-1 PFR) File, Tabs 1-30. He has asserted the following arguments: (1) the administrative judge erred in remanding to the agency for a redetermination of the penalty; (2) the administrative judge erred by failing to order damages; (3) the administrative judge was biased; and (4) the appellant has new and material evidence related to the merits of the removal decision and his affirmative defenses.3 Id. 2 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the Board articulated a nonexhaustive list of factors relevant in assessing the penalty to impose for an act of misconduct. 3 The agency filed a response to the petition for review, which was 2 days late. M-1 PFR File, Tabs 31, 35. The agency argues that good cause exists for its filing delay because of the size of the appellant’s submissions on review and because the appellant would not be prejudiced by accepting the agency’s response. M-1 PFR File, Tab 37 at 5. We recognize the size of the appellant’s submissions, but the agency has not shown why that prevented it from filing a response to the petition for review or seeking an extension to respond in a timely fashion. Accordingly, we find that the agency has not shown good cause for the untimely filing, and we have not considered the agency’s response to the appellant’s petition for review. 5 C.F.R. § 1201.114(g) (2023).3 DISCUSSION OF ARGUMENTS ON REVIEW ¶3First, we find that the administrative judge did not err in remanding to the agency for a redetermination of the penalty. M-1 PFR File, Tab 1 at 5-6. That is what the Federal Circuit ordered. Grissom, 2022 WL 17334715, at 18 (“We therefore vacate the penalty portion of the Board’s decision pertaining to the Douglas factors and remand to the Board to remand to the [agency] for a redetermination of the penalty.”); see also Connor v. Department of Veterans Affairs, 8 F.4th 1319, 1326 -27 (Fed. Cir. 2021) (stating that, if the Board determines that the Department of Veterans Affairs (VA) failed to consider the Douglas factors, the Board must remand to the VA for a redetermination of the penalty). ¶4Second, we find that the administrative judge did not err by failing to order damages. M-1 PFR File, Tab 1 at 5-8. Any request for damages is premature because there is not yet a final order in this appeal.4 To the extent the appellant is requesting attorney fees in connection with his appeal to the Federal Circuit, the Board lacks the authority to award attorney fees incurred in connection with an appeal of a Board decision to the Federal Circuit. Coradeschi v. Department of Homeland Security , 109 M.S.P.R. 591, ¶ 8 (2008), aff’d, 326 F. App’x 566 (Fed. Cir. 2009). ¶5Third, we address the appellant’s claim that the administrative judge was biased. M-1 PFR File, Tab 2 at 5-8 (asserting that the administrative judge rushed the proceedings, denied consolidation of the appellant’s appeals, denied his request for additional evidence to address purported perjury by agency witnesses, ignored some of his evidence relating to the merits of the case, and 4 We disagree with the appellant’s assertion that the Federal Circuit vacated his removal. M-1 PFR File, Tab 1 at 5. The Federal Circuit vacated the administrative judge’s penalty analysis only and remanded to the Board with instructions to remand to the agency for a redetermination of the penalty. Grissom, 2022 WL 17334715, at 18 . The Federal Circuit did not vacate the appellant’s removal outright. Cf. Sayers v. Department of Veterans Affairs , 954 F.3d 1370, 1382 (Fed. Cir. 2020) (“Because the [VA] cannot remove [the petitioner] under § 714 without the statute having impermissible retroactive effect, we vacate [the petitioner’s] removal.”). 4 showed favoritism toward the agency). The appellant has not shown that he filed a motion below requesting that the administrative judge recuse himself from the case, and we have found no such request in the record. To the extent that the appellant did not raise such an allegation below, he is precluded from raising it at this time. See Gensburg v. Department of Veterans Affairs , 85 M.S.P.R. 198, ¶ 7 (2000); Lee v. U.S. Postal Service , 48 M.S.P.R. 274, 280-82 (1991). In any event, the appellant’s disagreement with the administrative judge’s rulings and exercise of his broad authority to control the course of the proceedings does not overcome the presumption of honesty and integrity that accompanies administrative judges. See Oliver v. Department of Transportation , 1 M.S.P.R. 382, 386 (1980) (finding 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); see also Maloney v. Executive Office of the President, 2022 MSPB 26, ¶ 38 (stating that the mere fact that the administrative judge ruled against a party does not establish bias). The appellant’s arguments concerning a potential conflict of interest are wholly unsupported, M -1 PFR File, Tab 2 at 5, and his assertion that the Board’s Atlanta Regional Office has numerous pending cases involving the VA does not warrant reassignment to another regional office, M-1 PFR File, Tab 1 at 14. ¶6Fourth, we address the appellant’s purported new and material evidence, including copies of filings in other litigation in which the appellant is involved. M-1 PFR File, Tabs 3-30. Many of the documents predate the initial decision and are not new. See Grassell v. Department of Transportation , 40 M.S.P.R. 554, 564 (1989) (stating that, to constitute new and material evidence, the information contained in the documents, not just the documents themselves, must have been unavailable despite due diligence when the record closed); 5 C.F.R. § 1201.115(d). To the extent any of the evidence submitted on review is new, the appellant has asserted that it relates to the merits of his removal and to his affirmative defenses; however, the Federal Circuit affirmed the administrative5 judge’s findings that the appellant failed to prove his affirmative defenses.5 The appellant has not explained how the documents are relevant to the remand of this appeal for a redetermination of the penalty, and we find that they are not. ¶7In closing, we address two other matters. The appellant requests that the Board “waive it[s] jurisdiction in the [equal employment opportunity (EEO) matters] taken before the [Equal Employment Opportunity Commission].” M-1 PFR File, Tab 1 at 7. It is unclear what the appellant is seeking. The appellant did not raise any EEO claims before the administrative judge. The appellant also asks that the Board refer certain matters to the Office of Special Counsel. Id. at 9. Pursuant to 5 U.S.C. § 1221(f)(3), if the Board finds that the agency committed a prohibited personnel practice, it will refer a copy of the decision to the Office of Special Counsel. However, the Board has not found that the agency committed a prohibited personnel practice in this case. 5 After the record closed on review, the appellant filed a motion for leave to file an additional pleading regarding a writ of certiorari he intended to file and other documents concerning his due process rights. M-1 PFR File, Tab 40. Generally, the Board’s regulations do not provide for such a pleading to be filed after the close of the record. 5 C.F.R. § 1201.114(a)(5), (k) (2023). In order for such a filing to be accepted by the Board, the appellant must describe the nature of and need for the pleading, and it must contain new and material evidence or argument that was not readily available before the record closed. 5 C.F.R. § 1201.114(a)(5), (k) (2023). We DENY the appellant’s motion, as he failed to show the relevance of the documents to the single issue in this appeal—the court -directed remand to the agency for a new penalty determination. 6 ORDER ¶8For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order. On remand, the administrative judge shall issue an initial decision remanding this matter to the agency for it to make a new penalty determination.6 FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C. 6 The appellant’s concerns about his due process rights in connection with any future proceedings are premature. M-1 PFR File, Tab 1 at 8. However, the agency should be mindful of its obligations to provide the appellant with the necessary due process. See Brenner v. Department of Veterans Affairs , 990 F.3d 1313, 1324 (Fed. Cir. 2021) (observing that 38 U.S.C. § 714 maintains due process protections for employees); Ward v. U.S. Postal Service , 634 F.3d 1274, 1279-80 (Fed. Cir. 2011); Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368, 1375-77 (Fed. Cir. 1999).7	Grissom_Mark_D_AT-0714-21-0175-M-1_Remand_Order.pdf	2024-10-18	MARK GRISSOM v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0714-21-0175-M-1, October 18, 2024	AT-0714-21-0175-M-1	NP
411	https://www.mspb.gov/decisions/nonprecedential/Kelley_La_Terrence_D_DC-0752-22-0563-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LA TERRENCE D. KELLEY, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER DC-0752-22-0563-I-1 DATE: October 17, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 La Terrence D. Kelley , Chesapeake, Virginia, pro se. Lorna J. Jerome , Esquire, and Edith Moore McGee , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his 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 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). circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to find that the appellant is barred by the doctrine of collateral estoppel from claiming that the agency improperly denied his request for reasonable accommodation or required him to compete for promotion, we AFFIRM the initial decision. BACKGROUND The appellant was a GS-12 Management and Program Analyst with the agency’s U.S. Coast Guard. Initial Appeal File (IAF), Tab 1 at 1, 4, Tab 8 at 30. On September 27, 2021, the appellant filed an Equal Employment Opportunity (EEO) complaint alleging, in relevant part, that he was discriminated against when the agency denied his May 12, 2021 reasonable accommodation request for full-time telework in August 2021, and that he was retaliated against when the agency posted for competition a GS-12 position to which he was eventually promoted in February 2022.2 IAF, Tab 8 at 30, 67-68, Tab 10 at 7-8, 17-18. He subsequently filed a complaint on October 7, 2022, with the U.S. District Court for the Eastern District of Virginia (district court) raising the same claims. IAF, Tab 15 at 10, 14-19. Meanwhile, on August 9, 2022, the appellant submitted a 2 Prior to his promotion, the appellant served in the same position at the GS-11 level. IAF, Tab 8 at 30.2 letter to the agency notifying it that, effective August 12, 2022, he considered himself “[c]onstructively [d]ischarged.” IAF, Tab 10 at 16. He filed the instant appeal with the Board challenging, in relevant part, his “involuntary retirement” due to intolerable working conditions. IAF, Tab 1 at 3. The administrative judge issued an acknowledgment order apprising the appellant that, to receive the hearing he requested on the issue of jurisdiction, he must nonfrivolously allege facts that if true could establish that his separation was involuntary. IAF, Tab 5 at 2-3. The appellant responded and argued that he was forced to resign due to intolerable working conditions that exacerbated the symptoms of his disabilities. IAF, Tab 10 at 6, 11. Specifically, he asserted that his resignation was the result of the agency denying his request for accommodation and requiring him to compete for his eventual GS-12 promotion, as discussed above. Id. at 6-7, 10-12. He also argued that he resigned because, on May 12, 2022, he witnessed a physical altercation between his coworkers, and the agency failed to notify him that his coworker tested positive for COVID-19. Id. at 7-8, 12. The agency moved to dismiss the appeal for lack of jurisdiction. IAF, Tab 11 at 4-7. Without holding the appellant’s requested hearing, the administrative judge dismissed the appeal, finding that the appellant failed to nonfrivolously allege facts that would support a finding that a reasonable person in his position would have been compelled to retire or resign under the circumstances alleged. IAF, Tab 1 at 2, Tab 17, Initial Decision (ID) at 1, 5, 10. The administrative judge declined to dismiss the appeal on the alternative basis that the appellant was raising before the Board the same claims in his pending district court litigation. ID at 3 n.3. She reasoned that the appellant was seeking different remedies before the district court. Id. The appellant has timely filed a petition for review, reasserting that his decision to resign was the result of the intolerable working conditions caused by3 the agency. Petition for Review (PFR) File, Tab 1 at 7-12. The agency has not responded to the petition for review. After the appellant filed his petition for review, the district court granted summary judgment on the appellant’s complaint, reasoning, as relevant here, that there was no dispute of material fact as to the following: “the [appellant] failed to provide adequate medical documentation in support of his [May 12, 2021] request for accommodation;” his requested accommodation was not “necessary” to enable him to perform the essential functions of his job; and his promotion was not improperly delayed, and even if it were, the delay was for the non-pretextual, legitimate nondiscriminatory reason of allowing open competition for the appointment. Kelley v. Mayorkas , 694 F. Supp. 3d 715, 719-22, 726-29, 731-33 (E.D. Va. 2023). The Office of the Clerk of the Board issued an order to setting forth the standards for the application of the doctrine of collateral estoppel and instructing the parties to provide evidence and argument regarding the application of the doctrine to the district court’s findings. PFR File, Tab 8. The agency has responded, arguing that the Board should apply collateral estoppel to the accommodation and promotion issues addressed by the district court. PFR File, Tab 9 at 1. The appellant has not responded to the Clerk’s order or replied to the agency’s response. DISCUSSION OF ARGUMENTS ON REVIEW We modify the initial decision to apply the doctrine of collateral estoppel. The appellant previously challenged the same agency actions he contests in this appeal in his district court discrimination case. Compare IAF, Tab 15 at 14-19, and Kelley, 694 F.Supp.3d at 719-22, 726-33, with IAF, Tab 10 at 6-8, 10-12. The administrative judge issued an order requiring the appellant to address whether his decision to file his district court complaint was an election of forum that prevented the Board from taking jurisdiction over his alleged constructive removal. IAF, Tab 14 at 1-2. In response, the appellant argued that4 he had “distinct claims” in each venue—his alleged “constructive removal” before the Board, and the agency’s alleged “failure to accommodate his disability and its subsequent retaliation” related to his eventual promotion before the district court. IAF, Tab 15 at 5, 7. The administrative judge agreed with the appellant and considered these claims as part of the appellant’s alleged constructive removal. ID at 3 n.3. However, the administrative judge did not have the benefit of the district court decision at that time because it was issued after the January 24, 2023 initial decision. ID at 1. The district court granted summary judgment in favor of the agency on the merits by finding, as relevant here, that there was no dispute of material fact as to the following: “the [appellant] failed to provide adequate medical documentation in support of his [May 12, 2021] request for accommodation;” his requested accommodation was not “necessary” to enable him to perform the essential functions of his job; and his promotion was not improperly delayed, and, even if it were, the delay was for the non-pretextual, legitimate nondiscriminatory reason of allowing open competition for the job. Kelley, 694 F. Supp. 3d at 719-22, 726-29, 731-33. The appellant is barred by the doctrine of collateral estoppel from relitigating those findings here. Under the doctrine of collateral estoppel, once an adjudicatory body has decided a factual or legal issue necessary to its judgment, that decision may preclude relitigation of the issue in a case concerning a different cause of action involving a party to the initial case. Hau v. Department of Homeland Security , 123 M.S.P.R. 620, ¶ 13 (2016), aff’d sub nom. Bryant v. Merit Systems Protection Board , 878 F.3d 1320 (Fed. Cir. 2017). Collateral estoppel, or issue preclusion, is appropriate when: (1) the issue is identical to that involved in the prior action; (2) the issue was actually litigated in the prior action; (3) the determination of the issue in the prior action was necessary to the resulting judgment; and (4) the party against whom issue preclusion is sought had a full and fair opportunity to litigate the issue in the prior action, either as a party5 to the earlier action or as one whose interests were otherwise fully represented in that action. Id. The Board has held that collateral estoppel may be grounds for dismissing an appeal for lack of jurisdiction if a jurisdictional determination in a prior decision is afforded collateral estoppel effect and the appellant provides no other valid basis of Board jurisdiction. Id. On review, the Clerk of the Board issued an order on the applicability of the doctrine of collateral estoppel in this appeal, to which only the agency responded. PFR File, Tabs 8-9. We find that the issues in the relevant two cases are “identical” as required for collateral estoppel. To establish jurisdiction over an alleged constructive adverse action, an appellant must show that he lacked a meaningful choice in making what appeared to be a voluntary decision because of the agency’s wrongful actions. Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶¶ 8-11 (2013). The Board considers a discrimination claim in connection with a claim of involuntariness insofar as it relates to the issue of jurisdiction. Carey v. Department of Health and Human Services , 112 M.S.P.R. 106, ¶ 5 (2009). For example, the Board concluded in Bean that an appellant nonfrivolously alleged that he was subjected to an appealable constructive suspension because the agency forced him to take leave when it failed to accommodate his medical restrictions. Bean, 120 M.S.P.R. 397, ¶ 14. In another case, the Board found that an agency did not act wrongfully in prohibiting an employee from returning to work while it sought clarification of his medical restrictions, as permitted under the Rehabilitation Act of 1973. Rosario-Fabregas v. Department of the Army , 122 M.S.P.R. 468, ¶¶ 12-19 & n.5 (2015), aff’d, 833 F.3d 1342 (Fed. Cir. 2016). Here, the district court found that the agency did not act improperly as to the same set of events that the appellant raises in his Board appeal, i.e., the alleged failure grant the appellant’s May 12, 2021 request for full-time telework and the requirement that he compete for his promotion to a GS-12 position, which delayed the promotion until February 2022. Kelley, 694 F. Supp. 3d at 726-33; IAF, Tab 10 at 6-8, 10-12; PFR File, Tab 1 at 9-12. The district court’s finding6 that the agency did not act improperly in denying the appellant’s accommodation request or requiring him to compete for the GS-12 position was necessary to the decision to grant the agency’s request for summary judgment. Kelley, 694 F. Supp. 3d at 733-34. Further, the appellant was “represented” for purposes of collateral estoppel because he was a party to the district court litigation and he had a “full and fair chance to litigate” the issues in question in that prior case. See Fisher v. Department of Defense , 64 M.S.P.R. 509, 515 (1994) (quoting Mother’s Restaurant, Inc. v. Mama’s Pizza, Inc. , 723 F.2d 1566, 1569 & n.4 (Fed. Cir. 1983) (holding that “issues which are actually and necessarily determined by a court of competent jurisdiction are conclusive in a subsequent suit involving the parties to the prior litigation” if the parties “had a ‘full and fair chance to litigate’ the issues to be precluded”) (citations omitted)). And regarding the “actually litigated” requirement, the Board has found it appropriate to give preclusive effect to district court decisions, like the one here, that grant summary judgment. Miller v. Department of the Army , 121 M.S.P.R. 189, ¶ 20 (2014) (finding that the “actually litigated” element and all others were met for purposes of collateral estoppel when an issue raised in a Board appeal previously was disposed of in a district court via summary judgment); New v. Department of Veterans Affairs , 99 M.S.P.R. 404, ¶¶ 11, 31 (2005) (finding that the Board was precluded by the doctrine of res judicata from revisiting claims decided by a district court). Finally, the doctrine of collateral estoppel only applies to valid and final judgments. Wade v. Department of the Air Force , 70 M.S.P.R. 396, 398 (1996) (citations omitted), aff’d per curiam , 104 F.3d 375 (Fed. Cir. 1996) (Table). Here, although the district court advised the appellant regarding how to appeal its decision, he elected not to do so. Kelley, 694 F. Supp. 3d at 733 (advising the appellant of his option to appeal the decision within 60 days); see Fed. R. App. P. 3(a)(1), 4(a)(1)(B)(i)-(iii) (providing that a party generally must file an appeal of a district court decision by “filing a notice of appeal with the district court7 clerk” “within 60 days after entry of the judgment or order appealed from if one of the parties is” the United States, a Federal agency, or a Federal officer, or employee sued in his “official capacity”). In September 2023, he filed a motion for default judgment with the district court, which it denied, advising him that it closed the case when it issued its summary judgment decision. There is no evidence that the appellant took any further action regarding his district court case either on the record before us or in the district court’s docket. Therefore, the district court decision is final. Thus, the elements of collateral estoppel have been satisfied here, and we modify the initial decision to find that the appellant is collaterally estopped from asserting in the instant appeal that the denial of his May 12, 2021 request for reasonable accommodation and his allegedly delayed promotion to his GS-12 position forced him to resign. To the extent that the administrative judge considered these allegations in finding that the Board lacks jurisdiction, we modify the initial decision to decline to consider them. The administrative judge properly found that the appellant failed to make a nonfrivolous allegation that he had no choice to resign because of two May 12, 2022 workplace incidents. 3 The administrative judge found that the remaining incidents alleged by the appellant, even if true, would not have caused a reasonable person in his position to feel compelled to resign or retire. ID at 8-10. The appellant disputes this determination on review. PFR File, Tab 1 at 8, 10-12. We are not persuaded. 3 Because it was unclear whether the appellant retired or resigned, the Clerk’s Office requested that the parties clarify the nature of the appellant’s separation and the status of any request for a retirement annuity. PFR File, Tab 8 at 3-4. The agency has clarified that the appellant resigned, and the appellant has not disputed that representation. PFR File, Tab 9 at 36, 41. Accordingly, we modify the initial decision to the extent it referenced the nature of the appellant’s separation as a retirement to properly reflect that it was a resignation. This distinction does not impact our analysis. See Bean, 120 M.S.P.R. 397, ¶ 8 (explaining that all constructive adverse action appeals have in common that the agency’s wrongful actions deprived an employee of a meaningful choice in the matter); Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (explaining that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision).8 The appellant has the burden of proving the Board’s jurisdiction by a preponderance of the evidence. Carey, 112 M.S.P.R. 106, ¶ 5. An employee-initiated action, such as a retirement or resignation, is presumed to be voluntary and thus outside the Board’s jurisdiction. Id. An involuntary resignation, however, is equivalent to a forced removal and therefore within the Board’s jurisdiction. Id. To overcome the presumption that a resignation is voluntary, the employee must show that it was the result of the agency’s misinformation or deception or was coerced by the agency. Id. To establish involuntariness on the basis of coercion, the appellant must establish that the agency imposed the terms of the resignation, he had no realistic alternative but to resign, and the resignation was the result of improper actions by the agency. Id. If the employee claims that his retirement was coerced by the agency’s creating intolerable working conditions, he must show that a reasonable employee in his position would have found the working conditions so oppressive that he would have felt compelled to retire. Id. The appellant reiterates on review that an incident on May 12, 2022, an altercation between two coworkers near his desk, caused him to fear for his physical safety and that the agency failed to respond to two grievances he filed in June and July of 2022 regarding this May incident. IAF, Tab 10 at 7-8, 11-12; PFR File, Tab 1 at 10-12. He also reasserts that, on the same day, despite the agency’s knowledge of his high-risk status, it failed to notify him that a coworker who sat across from him in the office tested positive for COVID -19. IAF, Tab 10 at 7; PFR File, Tab 1 at 11-12. He argues that the administrative judge “downplay[ed] the heightened risk [the appellant] faced from COVID-19 infection.” PFR File, Tab 1 at 11. He alleges that it was “only when [the agency] demonstrated objective disregard for [the appellant] by failing to notify him that he had been exposed to COVID-19 in the workplace that [he] felt compelled to resign.” Id. However, we agree with the administrative judge’s finding below that details regarding this incident are “sparse.” ID at 9. The only details the9 appellant provided below regarding the incident are that he learned on May 12, 2022, that a coworker “who sits directly across from [the appellant]” had tested positive for COVID -19 and “was leaving work that day.” IAF, Tab 10 at 19. The appellant provides no additional allegations on review. PFR File, Tab 1 at 11-12. We agree with the administrative judge that these alleged facts fail to rise to the level of a nonfrivolous allegation of jurisdiction. ID at 8-9. Even if the appellant and his wife’s high risk of infection reasonably caused him to resign, as he claims on review, he has pointed to no wrongful agency action that increased his risk. PFR File, Tab 1 at 11. The appellant has provided no factual allegations that, if true, would prove that the agency’s notification of his coworker’s infection status was deficient.4 On review, the appellant also emphasizes that he attempted to seek help from the agency to address his concerns by filing two grievances in June and July 2022, but that the agency failed to respond, which made him feel unsupported. PFR File, Tab 1 at 8, 10. However, he has not made a nonfrivolous allegation that a reasonable person would have been compelled to retire or resign instead of challenging the alleged improper agency actions through available procedures, such as by filing the grievances at issue here or by elevating them. See Axsom v. Department of Veterans Affairs , 110 M.S.P.R. 605, ¶ 17 (2009) (finding that the appellant failed to establish that a reasonable person would have felt compelled to resign because the appellant had the option to stand and fight the alleged discrimination, harassment, and retaliation rather than resign, and had done so by 4 The administrative judge found that, even when considered in combination with the appellant’s other allegations, two coworkers’ physical altercation would not have caused a reasonable person in the appellant’s position to retire. ID at 8-9. Although the appellant reiterates facts about this incident on review, he does allege any error in the administrative judge’s finding on this issue. PFR File, Tab 1 at 8. We discern no basis to disturb this ruling, which is consistent with our caselaw. Sullivan v. Department of Veterans Affairs, 79 M.S.P.R. 81, 86 (1998) (finding that a single incident in which an appellant’s superior chastised, threatened, and harassed him during a meeting, even if true, alone would not be enough to show that working conditions were so difficult that a reasonable person in his position would have felt compelled to resign).10 filing an EEO complaint). Thus, we are not persuaded that he had no other alternative than to resign or retire. In sum, we discern no reason to disturb the administrative judge’s explained findings. Therefore, we agree with the administrative judge that the appellant failed to establish that the Board has jurisdiction over his involuntary resignation appeal. ID at 9-10. NOTICE OF APPEAL RIGHTS5 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the 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. 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.11 Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case,12 and 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 13 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no 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 of 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 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.15	Kelley_La_Terrence_D_DC-0752-22-0563-I-1_Final_Order.pdf	2024-10-17	LA TERRENCE D. KELLEY v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-0752-22-0563-I-1, October 17, 2024	DC-0752-22-0563-I-1	NP
412	https://www.mspb.gov/decisions/nonprecedential/Senter_TrentDA-0752-20-0434-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD TRENT SENTER, Appellant, v. DEPARTMENT OF ENERGY, Agency.DOCKET NUMBER DA-0752-20-0434-I-1 DATE: October 16, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Lawrence Berger , Esquire, Glen Cove, New York, for the appellant. Jonathan R. Buckner , Esquire, Albuquerque, New Mexico, for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which sustained his removal. On petition for review, the appellant disputes the administrative judge’s findings on the merits and his denial of the appellant’s related affirmative defenses. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL 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 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.2 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 obtain3 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and 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 4 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit 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. 5 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.6	Senter_TrentDA-0752-20-0434-I-1_Final_Order.pdf	2024-10-16	TRENT SENTER v. DEPARTMENT OF ENERGY, MSPB Docket No. DA-0752-20-0434-I-1, October 16, 2024	DA-0752-20-0434-I-1	NP
413	https://www.mspb.gov/decisions/nonprecedential/Wagoner_CorneliaDE-0752-20-0242-I-3_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CORNELIA WAGONER, Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Agency.DOCKET NUMBER DE-0752-20-0242-I-3 DATE: October 16, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Cornelia Wagoner , Winslow, Arizona, pro se. Larrisa Emerson and Sharon Begay-McCabe , Window Rock, Arizona, for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman Henry J. Kerner , Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed without prejudice to refiling her appeal of the agency’s removal action. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 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, AFFIRM the initial decision insofar as it dismissed the appellant’s appeal without prejudice, and FORWARD the case to the Board’s Denver Field Office for adjudication of the underlying appeal because the conditions set forth in the initial decision for refiling the appeal have been met. 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 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.2 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 3 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 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. 420 (2017). If you have a representative in this case, and 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. 4 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.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 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. 5 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.6	Wagoner_CorneliaDE-0752-20-0242-I-3_Final_Order.pdf	2024-10-16	CORNELIA WAGONER v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. DE-0752-20-0242-I-3, October 16, 2024	DE-0752-20-0242-I-3	NP
414	https://www.mspb.gov/decisions/nonprecedential/Parra_Jose_A_SF-0752-20-0421-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JOSE A. PARRA, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER SF-0752-20-0421-I-1 DATE: October 16, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Ryan C. Nerney , Ladera Ranch, California, for the appellant. Brian P. Olfato and Diana Mondragon , Chula Vista, California, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which affirmed the agency’s action. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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). statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to address the appellant’s claim regarding the consistency of the penalty, we AFFIRM the initial decision. In alleging that the administrative judge erred in finding that the agency proved its charge of conduct unbecoming, the appellant primarily challenges the administrative judge’s credibility determinations regarding several witnesses. Petition for Review (PFR) File, Tab 1 at 12-13, 21-27. We find, however, that the appellant’s arguments do not set forth sufficiently sound reasons to disturb the administrative judge’s well-reasoned credibility determinations, which are supported by the record. Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002). Moreover, we discern no reason to disturb the administrative judge’s factual findings and legal conclusions, as she properly considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions. Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016). Thus, we agree with the administrative judge that the agency proved its charge of conduct unbecoming. The appellant also argues that the penalty exceeded the bounds of reasonableness and that the deciding official and the administrative judge did not properly weigh the factors set forth in Douglas v. Veterans Administration , 5 M.S.P.R. 280, 306 (1981). PFR File, Tab 1 at 14-21. Among other things, the2 appellant asserts that the deciding official and the administrative judge “completely ignored” that the appellant submitted “a plethora of other comparator evidence that does not support a removal for similar conduct.” Id. at 18. Below, he identified three alleged comparator employees who were given lesser penalties. Initial Appeal File (IAF), Tab 5 at 30-32, 51-68. Because the administrative judge did not address the appellant’s claim regarding the consistency of the penalties, we modify the initial decision to address this issue, nonetheless finding that the appellant has not met his burden. See McNab v. Department of the Army, 121 M.S.P.R. 661, ¶¶ 10–11 (2014). Among the factors that an agency should consider in setting the penalty for misconduct is the “consistency of the penalty imposed with those imposed upon other employees for the same or similar offenses.” Douglas, 5 M.S.P.R. at 305. While no single factor is outcome determinative, the fact that two employees come from different work units or supervisory chains remains an important factor in determining whether it is appropriate to compare the penalties they are given. Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 13. In most cases, employees from another work unit or supervisory chain will not be proper comparators. Id. There must be a close connection between the misconduct or some other factor for an employee from another work unit or supervisory chain to be a proper comparator. Id. Although the universe of potential comparators will vary from case to case, it should be limited to those employees whose misconduct or other circumstances closely resemble those of the appellant. Id. The relevant inquiry is whether the agency knowingly and unjustifiably treated employees differently. Id., ¶ 14. In addition, the consistency of the penalty with those imposed on other employees for the same or similar offenses is only one of many factors to be considered in determining an appropriate penalty, and is not necessarily outcome determinative. Id., ¶ 18; Douglas, 5 M.S.P.R. at 305-06. As noted above, the appellant identified three alleged comparator employees and provided decision letters of their disciplinary actions. IAF, Tab 53 at 54-56, 60-61, 66-68. Two of the comparators engaged in misconduct that is widely different from the sole sustained charge in this case, and thus, they are not valid comparators for consistency of the penalty purposes. Id. at 60-61, 66-68. Regarding the third comparator, he was suspended for 5 days for use of poor judgment; he received double reimbursement (in the amount of $1,665) for repairs to a rental car from a rental car company and insurance company. Id. at 54-56. Although the third comparator was also a law enforcement officer and engaged in insurance fraud, he worked at a different office location and was under a different supervisory chain. Moreover, the scale of the misconduct was greater in the appellant’s case, as it involved the submission of an altered invoice that enhanced the cost of carpet repairs to a rental property he owned by $10,000 and resulted in multiple investigations and felony charges in state court. IAF, Tab 6 at 6, 8, 85-86, Tab 11 at 48-51, 53-54. Unlike the appellant, the third comparator did not seek double reimbursement; instead, the insurance company mistakenly paid him, and he accepted its error. IAF, Tab 5 at 51. The appellant has failed to identify another comparator employee whose misconduct or other circumstances closely resemble those of the appellant. He also has not established that the agency knowingly and unjustifiably treated employees differently. Therefore, the appellant has not established that he was subjected to an inconsistent penalty. For the reasons stated in the initial decision, we agree with the administrative judge’s finding that removal is the maximum reasonable penalty for the sustained charge. NOTICE OF APPEAL RIGHTS2 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise 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 following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular5 relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 6 Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for 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 court7 of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.9	Parra_Jose_A_SF-0752-20-0421-I-1_Final_Order.pdf	2024-10-16	JOSE A. PARRA v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-0752-20-0421-I-1, October 16, 2024	SF-0752-20-0421-I-1	NP
415	https://www.mspb.gov/decisions/nonprecedential/Knapp_Edward_D_AT-0842-20-0764-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD EDWARD D. KNAPP, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER AT-0842-20-0764-I-1 DATE: October 16, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Edward D. Knapp , Pompano Beach, Florida, pro se. Michael Shipley , Washington, D.C., for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman Henry J. Kerner , Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his appeal for lack of jurisdiction because the Office of Personnel Management (OPM) had not issued a final decision on his claim. Generally, we grant petitions such as this one only in the following circumstances: the initial 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). On petition for review, the appellant does not challenge the administrative judge’s jurisdictional finding but, rather, asserts that he had “again written OPM to obtain a final decision.” Petition for Review (PFR) File, Tab 1 at 4. He also submits a copy of the letter that he sent to OPM, including numerous attachments. Id. at 5-36. In his letter to the Director of OPM, dated 1 day prior to the filing date of his petition for review, the appellant requested assistance in obtaining a final decision regarding his claim for “back pay” purportedly owed to him regarding his deferred retirement. Id. at 20-21. The majority of the documents that he submitted to OPM are photocopies of the agency’s motion to dismiss already in the record in the present appeal. Id. at 7-18, 24-35; Initial Appeal File (IAF), Tab 7. The appellant also submits email correspondence between himself and OPM representatives prior to the issuance of OPM’s initial decision. PFR File, Tab 1 at 5-6. We have considered the appellant’s new evidence and argument to the extent it concerns the issue of the Board’s jurisdiction because jurisdiction can be raised at any time, including on review. See Pirkkala v. Department of Justice ,2 123 M.S.P.R. 288, ¶ 5 (2016) (considering evidence submitted for the first time on review because it was relevant to the Board’s jurisdiction). However, the appellant presents no basis for overturning the administrative judge’s finding that OPM had not issued a final decision on his claim and that the Board lacked jurisdiction over the appeal. IAF, Tab 8, Initial Decision at 2; see Ramirez v. Office of Personnel Management , 114 M.S.P.R. 511, ¶ 7 (2010) (stating that the Board generally lacks jurisdiction to hear an appeal of a retirement matter before OPM has issued a final or reconsideration decision on the matter). Given the fact that the appellant wrote to OPM to request a final decision only 1 day prior to filing his petition for review, there is no evidence to suggest that OPM does not intend to issue a final decision on his claim. PFR File, Tab 1 at 20-21; cf. Ramirez, 114 M.S.P.R. 511, ¶ 7 (stating that the Board will take jurisdiction, even absent an OPM final decision, when the appellant has repeatedly requested such a decision and the evidence indicates that OPM does not intend to issue a final decision). Moreover, the record evidence demonstrates that OPM issued the initial decision only 4 days prior to the appellant’s filing of his initial appeal, undermining his assertion on review that he had “again written OPM to obtain a final decision.” PFR File, Tab 1 at 24; IAF, Tab 1. Accordingly, we find that the appellant’s new evidence does not alter the jurisdictional determination, and we affirm the initial decision. NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish 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 http://www.mspb.gov/probono for information regarding pro bono representation4 for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case, and 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 file5 with the EEOC no later than 30 calendar days after your representative 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.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 court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Knapp_Edward_D_AT-0842-20-0764-I-1_Final_Order.pdf	2024-10-16	EDWARD D. KNAPP v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0842-20-0764-I-1, October 16, 2024	AT-0842-20-0764-I-1	NP
416	https://www.mspb.gov/decisions/nonprecedential/Bell_AndreDC-0752-20-0403-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ANDRE BELL, Appellant, v. SMITHSONIAN INSTITUTION, Agency.DOCKET NUMBER DC-0752-20-0403-I-1 DATE: October 16, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Rosa M. Koppel , Esquire, McLean, Virginia, for the appellant. Katherine Bartell and Mia Haessly , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which affirmed the agency’s removal action. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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). the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). BACKGROUND The appellant was a Supervisory Security Guard with the Smithsonian Institution at the National Museum of African American History and Culture (NMAAHC). Initial Appeal File (IAF), Tab 4 at 13, Tab 5 at 4. On August 8, 2019, the appellant was involved in an argument with a coworker that escalated into a physical confrontation. IAF, Tab 5 at 10-15. Despite their supervisor, the Security Manager, being in between them, the two continued to physically grapple and had to be separated by several other employees. Id.; IAF, Tab 10. On August 28, 2019, the agency proposed to remove the appellant for one charge of fighting. IAF, Tab 5 at 4-6. After rescinding its original removal decision and providing the appellant an opportunity to view the video file and submit a written and oral response, the agency sustained the charge and removed the appellant, effective February 22, 2020. IAF, Tab 4 at 13-16, 19 -31. The agency similarly proposed to remove the coworker, but it mitigated the penalty to a demotion and a 14-day suspension. IAF, Tab 14 at 15-18. The appellant subsequently filed a Board appeal, alleging that his coworker was the aggressor and arguing that his punishment of removal should not be more severe than that of his coworker’s punishment. IAF, Tab 1 at 6. After holding a2 hearing, the administrative judge issued an initial decision affirming the agency’s removal action. IAF, Tab 19, Initial Decision (ID) at 1. The administrative judge found that there was no dispute that the appellant engaged in fighting. ID at 9. In so holding, the administrative judge did not credit the appellant’s testimony that he was not the aggressor. Id. Rather, the administrative judge credited the proposing official’s testimony that the appellant, as opposed to the coworker, was the aggressor in the incident. ID at 9-10. The administrative judge then found a nexus between the action and the efficiency of the service. ID at 10-11. Finally, the administrative judge found that the penalty of removal was reasonable. ID at 11-15. The administrative judge considered and credited the deciding official’s testimony that she considered the appellant the aggressor, which substantiated the more severe penalty for the appellant. ID at 14-15. The appellant has filed a petition for review, arguing that the initial decision was based on erroneous findings of fact. PFR File, Tab 1 at 13. He presents several mitigating factors in support of a lesser penalty, challenges the administrative judge’s credibility determinations, and argues that he improperly received a disparate penalty compared to the coworker, despite them being similarly situated. Id. at 5-6, 11-16. The agency has responded, and the appellant has replied to its response. PFR File, Tabs 3, 4. DISCUSSION OF ARGUMENTS ON REVIEW Generally, in an adverse action appeal, an agency must prove its charge by a preponderance of the evidence, establish a nexus between the action and the efficiency of the service, and establish that the penalty it imposed is within the tolerable bounds of reasonableness. Hall v. Department of Defense , 117 M.S.P.R. 687, ¶ 6 (2012). The administrative judge here found that the agency proved its charge of fighting by preponderant evidence and established a nexus between the3 action and the efficiency of the service. ID at 10-11. The parties do not challenge these findings on review, and we discern no reason to disturb them. The appellant on review challenges the penalty of removal. PFR File, Tab 1 at 13-16. The administrative judge found that the penalty of removal was within the tolerable bounds of reasonableness. ID at 15. We agree. The Board will review an agency -imposed penalty only to determine if the agency considered all the relevant factors and exercised management discretion within tolerable limits of reasonableness. Douglas v. Veterans Administration , 5 M.S.P.R. 280, 306 (1981). The appellant has failed to present sufficiently sound reasons for disturbing the administrative judge’s credibility determinations. The appellant on review specifically challenges the administrative judge’s finding that he was the aggressor. PFR File, Tab 1 at 13. The administrative judge credited both the proposing and deciding officials’ testimony that the appellant was the aggressor. ID at 9-10, 12, 14-15. 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). Indeed, the evaluation of witness credibility is a matter within the administrative judge’s discretion and is “virtually unreviewable.” Mithen v. Department of Veterans Affairs , 122 M.S.P.R. 489, ¶ 13 (2015), aff’d, 652 F. App’x 971 (Fed. Cir. 2016). An administrative judge’s credibility determinations are not owed deference when the findings are incomplete, inconsistent with the weight of the evidence, and do not reflect the record as a whole. Id. However, mere disagreement with the administrative judge’s credibility determinations generally does not warrant full review of the record by the Board. Weaver v. Department of the Navy , 2 M.S.P.R. 129, 133-34 (1980). 4 The appellant argues that the administrative judge erred in crediting the proposing official’s conclusion that he was the aggressor because she “could not say who started the verbal confrontation.” PFR File, Tab 1 at 13. He further asserts that the deciding official “was unable to point to any part of the video supporting her view” that the appellant “was the aggressor.” Id. at 15-16. We are unpersuaded. Regardless of who started the verbal confrontation, the proposing official testified that the appellant was the aggressor, and thus caused the physical confrontation that followed. IAF, Tab 18, Hearing Compact Disc (HCD), Track 1 at 40:38 (testimony of the proposing official). Moreover, the deciding official testified that she determined that the appellant was the aggressor based on the video depicting him pointing at the coworker, approaching and following him around the short wall dividing them, and continuing to point at the coworker despite the proposing official’s attempts to keep them separated. HCD, Track 2 at 13:31 (testimony of the deciding official). Indeed, the video depicts just that: the appellant crossing the room and aggressively approaching the coworker, who was on the other side of the room from the appellant. IAF, Tab 10. We therefore find that the administrative judge’s credibility determinations are complete, consistent with the weight of the evidence, and supported by the record. As such, we must defer to the administrative judge’s credibility determinations, and the appellant has failed to present sufficiently sound reasons for overturning them. Haebe, 288 F.3d at 1301; Mithen, 122 M.S.P.R. 489, ¶¶ 12-13. The appellant has failed to demonstrate that the agency erred in imposing on him a harsher penalty than that of his coworker. The appellant on review argues that he received a disparate penalty in comparison to the coworker, and that the agency knowingly and intentionally treated the similarly situated employees differently. PFR File, Tab 1 at 14-16. The administrative judge noted the deciding official’s testimony that the appellant was the aggressor as her justification for imposing a harsher penalty on the appellant. ID at 14-15. 5 It is well settled that among the factors an agency should consider in setting the penalty for misconduct is the “consistency of the penalty with those imposed upon other employees for the same or similar offenses.” Douglas, 5 M.S.P.R. at 305. To establish disparate treatment with regard to the penalty for an act of misconduct, the appellant must show that the charges and circumstances surrounding the charged behavior are substantially similar. Hamilton v. Department of Homeland Security , 117 M.S.P.R. 384, ¶ 14 (2012). Establishing that the charges and circumstances surrounding the charged behavior are substantially similar may include proof that the proffered comparison employee was in the same work unit, was with the same supervisor, was subjected to the same standards governing discipline, and faced discipline close in time to the appellant. Id. While the universe of potential comparators will vary from case to case, it should be limited to those employees whose misconduct and other circumstances closely resemble those of the appellant. Singh v. U.S. Postal Service, 2022 MSPB 15, ¶ 13. In assessing an agency’s penalty determination, the relevant inquiry is whether the agency knowingly and unjustifiably treated employees differently. Id., ¶ 14. When an employee raises an allegation of disparate penalties in comparison to specified employees, the agency must prove a legitimate reason for the difference in treatment by a preponderance of the evidence before the penalty can be upheld. Hamilton, 117 M.S.P.R. 384, ¶ 14. The appellant here argues that the coworker involved in the fighting was a similarly situated employee but received a disparate treatment. PFR File, Tab 1 at 13-16. Specifically, he alleges that they were both Supervisory Security Guards at the NMAAHC, worked in the same unit, reported to the same supervisor, were involved in the same fight, disobeyed supervisor instructions to stop the fight, had identical charges leveled against them, were subject to the same standards of conduct, took the same training concerning conduct, and were previously disciplined for insubordination. Id. at 15. Indeed, even the agency seems to admit that the appellant and the coworker were similarly situated. PFR6 File, Tab 3 at 11. We therefore agree that the appellant and the coworker were similarly situated employees for purposes of a disparate penalty analysis. See Hamilton, 117 M.S.P.R. 384, ¶ 14 (listing several factors to be considered in determining whether two employees are similarly situated). Nonetheless, we find that the agency has established legitimate reasons for the difference in treatment of the appellant. As the deciding official testified, she distinguished the appellant’s situation, as the aggressor, from the coworker, who engaged in the fight but was leaving the office to avoid the appellant. HCD, Track 2 at 49:20 (testimony of the deciding official). She specifically explained that, as the aggressor, the appellant deserved the more severe penalty and that the appellant’s actions caused the situation to escalate into a fight. HCD, Track 2 at 49:30 (testimony of the deciding official). As discussed above, we defer to the administrative judge’s credibility determination that the appellant was the aggressor in the fight. See Mithen, 122 M.S.P.R. 489, ¶ 13 (finding an administrative judge’s credibility determinations virtually unreviewable). Moreover, although the appellant had more than 21 years of Federal service, this was fewer than that of the coworker, who had nearly 27 years of Federal service. IAF, Tab 4 at 14, Tab 14 at 15. We therefore find that the agency met its burden of proving legitimate reasons for the difference in penalties. See Hamilton, 117 M.S.P.R. 384, ¶ 15 (finding an agency established legitimate reasons for its disparate treatment when the comparator claimed to be unaware of his obligation to cooperate with an investigation and subsequently offered to fully cooperate, whereas the appellant continuously refused to cooperate with the agency’s investigation); see also Davis v. U.S. Postal Service , 120 M.S.P.R. 457, ¶ 14 (2013) (finding the agency established legitimate reasons for disparate treatment when, unlike the appellant, the comparator’s conduct did not cause employees to fear for their safety and did not violate the agency’s zero tolerance policy, and he had significantly more years of service). 7 The appellant has not otherwise demonstrated that the penalty of removal is beyond the tolerable limits of reasonableness. In reviewing an agency-imposed penalty, the Board must give due weight to the agency’s primary discretion in maintaining employee discipline and efficiency; the Board’s function is not to displace management’s responsibility, but to ensure that managerial judgment has been properly exercised within tolerable limits of reasonableness. Douglas, 5 M.S.P.R. at 302. In evaluating the penalty, the Board will consider, first and foremost, the nature and seriousness of the misconduct. Arena v. U.S. Postal Service , 121 M.S.P.R. 125, ¶ 6 (2014), aff’d per curiam, 617 F. App’x 996 (Fed. Cir. 2015) (Table). The Board has held that fighting at the worksite during duty hours is serious. Grandison v. Department of the Navy , 7 M.S.P.R. 301, 304 (1981). Moreover, we agree with the administrative judge that the deciding official properly considered the relevant mitigating and aggravating factors. ID at 15; IAF, Tab 4 at 14-15, Tab 5 at 4-5. Accordingly, we agree with the administrative judge that the penalty of removal is within the tolerable bounds of reasonableness. See Douglas, 5 M.S.P.R. at 306 (finding the Board will review an agency-imposed penalty only to determine if the agency considered all the relevant factors and exercised management discretion within the tolerable limits of reasonableness). NOTICE OF APPEAL RIGHTS1 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and 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 1 Since the issuance of the initial decision in this matter, the Board 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 statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish 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 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The9 Board 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. 420 (2017). If you have a representative in this case, and 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 file10 with the EEOC no later than 30 calendar days after your representative 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.2 The court of appeals must receive your 2 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. 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. 12 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.13	Bell_AndreDC-0752-20-0403-I-1_Final_Order.pdf	2024-10-16	ANDRE BELL v. SMITHSONIAN INSTITUTION, MSPB Docket No. DC-0752-20-0403-I-1, October 16, 2024	DC-0752-20-0403-I-1	NP
417	https://www.mspb.gov/decisions/nonprecedential/Milligan_Johnny_L_AT-0432-18-0492-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JOHNNY LEE MILLIGAN, Appellant, v. SOCIAL SECURITY ADMINISTRATION, Agency.DOCKET NUMBER AT-0432-18-0492-I-1 DATE: October 15, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Johnny Lee Milligan , Ocala, Florida, pro se. Alisha Irene Wyatt-Bullman , Atlanta, Georgia, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his appeal as withdrawn. For the reasons set forth below, the appellant’s petition for review is DISMISSED as untimely filed without good cause shown. 5 C.F.R. § 1201.114(e), (g). We have also considered 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). appellant’s petition as a request to reopen his withdrawn appeal under 5 C.F.R. § 1201.118, and we DENY his request. BACKGROUND On May 23, 2018, the appellant filed an appeal challenging his removal from Federal service for unacceptable performance. Initial Appeal File (IAF), Tab 1. While the matter was pending, the appellant filed a motion to dismiss his appeal. IAF, Tab 17. The administrative judge called a status conference and explained the consequences of the appellant’s request to withdraw his appeal and that he may not be able to refile with the Board unless certain criteria are met. IAF, Tab 18, Hearing Compact Disc. The appellant stated that he understood the administrative judge’s guidance and that he wished to withdraw the appeal. Id. Accordingly, the administrative judge issued an initial decision dismissing the appeal as withdrawn, finding that the appellant’s withdrawal was clear, unequivocal, and decisive. IAF, Tab 19, Initial Decision (ID). Neither party filed a petition for review, and the initial decision became final on December 20, 2018. ID at 3. Approximately 2 1/2 years later, the appellant filed a pleading with the Board entitled, “Motion for Relief from Judgment for Lack of Statutory Standing Based on the Doctrine of Res Judicata,” which was docketed as a petition for review. Petition for Review (PFR) File, Tab 1. The Office of the Clerk of the Board issued an order notifying the appellant that his petition for review appeared to be untimely and providing him with an opportunity to establish good cause for the delay. PFR File, Tab 2. The appellant filed a response requesting that the filing deadline be waived. PFR File, Tab 3. The agency filed an untimely response to the appellant’s petition for review, along with a motion to accept the2 filing as timely.2 PFR File, Tabs 6-7. The appellant has filed a reply. PFR File, Tab 8. DISCUSSION OF ARGUMENTS ON REVIEW The Board treats a request to reopen an initial decision that became final when neither party petitioned for review as an untimely filed petition for review. Shannon v. Department of Veterans Affairs , 110 M.S.P.R. 365, ¶ 5 (2009). Therefore, we will initially consider the appellant’s submission as an untimely filed petition for review. A petition for review must be filed within 35 days after the date of the issuance of the initial decision or, if a party shows that he received the initial decision more than 5 days after it was issued, within 30 days after the receipt of the initial decision. 5 C.F.R. § 1201.114(e). Here, because the appellant has not alleged that he received the initial decision more than 5 days after it was issued, the last day on which he could timely file his petition for review was December 20, 2018. ID at 3. His petition for review, filed on May 17, 2021, was therefore untimely by 879 days. The Board will waive its filing deadline only upon a showing of good cause for the delay. 5 C.F.R. § 1201.114(g). To establish good cause for an untimely filing, a party must show that he exercised due diligence or ordinary prudence under the particular circumstances of the case. Gaetos v. Department of Veterans Affairs, 121 M.S.P.R. 201, ¶ 5 (2014). To determine whether an appellant has shown good cause, the Board will consider the length of the delay, the reasonableness of his excuse and his showing of due diligence, whether he is proceeding pro se, and whether he has presented evidence of the existence of circumstances beyond his control that affected his ability to comply with the time limits or of unavoidable casualty or misfortune that similarly shows a causal 2 We need not determine whether the agency has shown good cause for its delayed response because we have adjudicated this petition for review without considering the filing.3 relationship to his inability to timely file his petition. Id.; 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). Applying these factors, we find that the appellant has not shown good cause for his 879-day delay in filing his petition for review. Although he is proceeding pro se, a nearly 2 1/2 year-delay in filing his petition for review is significant. See Marchese v. U.S. Postal Service , 43 M.S.P.R. 268, 270 (finding that an appellant did not exercise due diligence in filing his petition for review 2 years and 5 months after alleged receipt of the initial decision), aff’d, 909 F.2d 1495 (Fed. Cir. 1990) (Table). The appellant asserts that the delayed filing should be excused because the agency allegedly engaged in “fraud when [it] lost its within-the-agency challenge to the WIGI Step Increase promotion” in November 2017. PFR File, Tab 3 at 4. To the extent the appellant argues his delayed filing should be excused based on new and material evidence, we find that the appellant has not alleged that the information contained in his petition for review or the documents attached thereto were unavailable to him prior to the close of the record before the administrative judge. See Rivers v. Department of the Navy, 61 M.S.P.R. 385, 387 (1994) (stating that the discovery of new and material evidence after the initial decision becomes final may constitute good cause for an untimely filed petition for review). Many of the documents attached to the appellant’s petition for review are already contained in the record and do not constitute new evidence, and the remaining documents are dated before the record closed before the administrative judge. IAF, Tab 5 at 51-55, 71-94; PFR File, Tab 1 at 12-43; see Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980) (holding that evidence that is already part of the record is not new). Similarly, although the appellant’s petition for review may seek to assert new legal theories, the factual information contained therein is not new, as the appellant has already presented it both to the agency in his response to the proposed removal and to the administrative judge. IAF, Tab 5 at 62-65, 69 -70,4 Tab 14 at 7-8. We therefore dismiss the appellant’s petition for review as untimely filed without good cause shown. To the extent the petition for review is construed as a request to reopen the appeal pursuant to 5 C.F.R. § 1201.118, we deny this request. See Lincoln v. U.S. Postal Service, 113 M.S.P.R. 486, ¶ 9 (2010); Shannon, 110 M.S.P.R. 365, ¶ 9. 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 material evidence, the Board will not reinstate an appeal once it has been withdrawn merely because the appellant wishes to proceed before the Board or to cure an untimely petition for review. Potter v. Department of Veterans Affairs , 116 M.S.P.R. 256, ¶ 7 (2011); Shannon, 110 M.S.P.R. 365, ¶ 9. The record shows, and the appellant does not dispute, that he voluntarily and unequivocally withdrew his appeal. ID at 1-3; PFR File, Tab 3 at 6. For the reasons set forth in above, we find that the appellant has not demonstrated that new and material evidence exists that would justify reopening the appeal. Finally, although the appellant asserts on review that he believes his pleading to be “a new and independent filing,” we find that the facts contained in his pleading are the same as those previously raised before the administrative judge. PFR File, Tab 3 at 6. The appellant has not alleged that the agency subjected him to any additional action aside from removing him from Federal service, for which there is a final decision from the Board, and therefore, we find no compelling reason based on the record to forward the matter to the region for docketing as a new appeal. See Hinton-Morgan v. Department of the Army , 75 M.S.P.R. 382, 394 (1997) (stating that an appellant is entitled to a new opportunity to request a hearing when he alleges that the Board has jurisdiction based on a different agency action than that which formed the basis of the original appeal). Accordingly, we dismiss the petition for review as untimely filed, and, to the extent the appellant’s petition may be construed as a request to reopen his5 withdrawn appeal, we deny his request. This is the final decision of the Merit Systems Protection Board regarding the timeliness of the petition for review. The initial decision remains the final decision of the Board regarding the appellant’s removal from Federal service. NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the 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). 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. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case, and 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 on7 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or8 other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. 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 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.10	Milligan_Johnny_L_AT-0432-18-0492-I-1_Final_Order.pdf	2024-10-15	JOHNNY LEE MILLIGAN v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. AT-0432-18-0492-I-1, October 15, 2024	AT-0432-18-0492-I-1	NP
418	https://www.mspb.gov/decisions/nonprecedential/Cook_SevgiDE-0752-16-0285-C-2_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SEVGI N. COOK, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER DE-0752-16-0285-C-2 DATE: October 15, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Sevgi N. Cook , Colorado Springs, Colorado, pro se. Laura A. Smith , Esquire, Fort Carson, Colorado, for the agency. BEFORE Cathy A. Harris, Chairman* Raymond A. Limon, Vice Chairman Henry J. Kerner, Member *Chairman Harris recused herself and did not participate in the adjudication of this appeal. FINAL ORDER The appellant has filed a petition for review of the compliance initial decision, which denied her petition for enforcement of the settlement agreement resolving her removal appeal. On petition for review, the appellant renews her 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). claim below that the agency has failed to clean her record.2 Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their 2 To the extent the appellant challenges the removal that is the subject of the settlement agreement, the Board will not revisit the merits of an underlying appeal in an enforcement proceeding. Hocker v. Department of Transportation , 63 M.S.P.R. 497, 505 (1994), aff’d, 64 F.3d 676 (Fed. Cir. 1995) (Table); Armstrong v. Office of Personnel Management , 37 M.S.P.R. 129, 131 (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.2 jurisdiction. If you wish 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 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The3 Board 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. 420 (2017). If you have a representative in this case, and 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 file4 with the EEOC no later than 30 calendar days after your representative 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 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. 5 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.6	Cook_SevgiDE-0752-16-0285-C-2_Final_Order.pdf	2024-10-15	SEVGI N. COOK v. DEPARTMENT OF THE ARMY, MSPB Docket No. DE-0752-16-0285-C-2, October 15, 2024	DE-0752-16-0285-C-2	NP
419	https://www.mspb.gov/decisions/nonprecedential/Ma_WannySF-0432-20-0471-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD WANNY MA, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER SF-0432-20-0471-I-1 DATE: October 15, 2024 THIS ORDER IS NONPRECEDENTIAL1 Wanny Ma , Monterey Park, California, pro se. Temple Louise Wilson , Esquire, Fort Belvoir, Virginia, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member REMAND ORDER ¶1The appellant has filed a petition for review of the initial decision, which sustained the appellant’s removal based on unacceptable performance pursuant to 5 U.S.C. chapter 43. For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the initial decision, and REMAND the case to the regional office for further adjudication in accordance with this Remand Order. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). DISCUSSION OF ARGUMENTS ON REVIEW ¶2The appellant was an Auditor whom the agency removed under the provisions of 5 U.S.C. chapter 43, effective April 21, 2020. Initial Appeal File (IAF), Tab 5 at 17-22. The appellant filed a Board appeal, and the administrative judge issued an initial decision sustaining the removal. IAF, Tab 16, Initial Decision (ID). The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has filed a response to the appellant’s petition for review, and the appellant has filed a reply to the agency’s response. PFR File, Tabs 3-4. ¶3Having carefully considered the appellant’s petition for review, we find that she has identified no basis to disturb the initial decision. Nevertheless, during the pendency of the petition for review, the U.S. Court of Appeals for the Federal Circuit issued Santos v. National Aeronautics and Space Administration , 990 F.3d 1355 (Fed. Cir. 2021), in which it clarified the agency’s burden of proof in a chapter 43 appeal. Specifically, the court held that, in addition to the elements of proof that the administrative judge identified in his initial decision, ID at 2, an agency “must justify institution of a PIP” by showing that the employee’s performance was unacceptable before the PIP. Santos, 990 F.3d at 1360-61. Therefore, to defend an action under chapter 43, an agency must now also prove by substantial evidence that the appellant’s performance during the appraisal period prior to the PIP was unacceptable in one or more critical elements. See Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 15. ¶4Pursuant to Santos, the Board now identifies six elements that the agency in a chapter 43 appeal must prove by substantial evidence: (1) the Office of Personnel Management approved its performance appraisal system and any significant changes thereto; (2) the agency communicated to the appellant the performance standards and critical elements of his position; (3) the appellant’s performance standards are valid under 5 U.S.C. § 4302(c)(1); (4) the appellant’s performance during the appraisal period was unacceptable in one or more critical2 elements; (5) the agency warned the appellant of the inadequacies in his performance during the appraisal period and gave him an adequate opportunity to demonstrate acceptable performance; and (6) after an adequate improvement period, the appellant’s performance remained unacceptable in at least one critical element. ¶5The administrative judge in this case correctly applied Board precedent as it existed at the time he issued his initial decision. However, the Federal Circuit’s decision in Santos applies to all pending cases, including this one, regardless of when the events took place. Lee, 2022 MSPB 11, ¶ 16. The parties here did not have an opportunity before the administrative judge to address the modified legal standard in light of Santos. We, therefore, remand this case for further adjudication of the appellant’s removal under the standard set forth in Santos. See Santos, 990 F.3d at 1363-64 (remanding the appeal for further proceedings under the modified legal standard); see also Lee, 2022 MSPB 11, ¶ 16 (remanding the appellant’s chapter 43 appeal because the parties were not informed of the modified standard set forth in Santos). ¶6On remand, the administrative judge shall accept evidence and argument on whether the agency proved by substantial evidence that the appellant’s pre-PIP performance was unacceptable. The administrative judge shall then issue a new initial decision consistent with Santos. If the agency makes the additional showing required under Santos on remand, the administrative judge may incorporate his prior findings on other elements of the agency’s case in the remand initial decision.3 ORDER ¶7For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.4	Ma_WannySF-0432-20-0471-I-1_Remand_Order.pdf	2024-10-15	WANNY MA v. DEPARTMENT OF DEFENSE, MSPB Docket No. SF-0432-20-0471-I-1, October 15, 2024	SF-0432-20-0471-I-1	NP
420	https://www.mspb.gov/decisions/nonprecedential/Leonard_Charmaine_C_NY-0752-21-0104-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CHARMAINE C. LEONARD, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER NY-0752-21-0104-I-1 DATE: October 15, 2024 THIS ORDER IS NONPRECEDENTIAL1 Charmaine C. Leonard , Buffalo, New York, pro se. Kimberly M. Thrun , Cheektowaga, New York, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member REMAND ORDER The appellant has filed a petition for review of the initial decision, which dismissed the 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 distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). REMAND the case to the New York Field Office for further adjudication in accordance with this Remand Order. BACKGROUND On April 26, 2020, the agency promoted the appellant in the Veterans Health Administration (VHA) from a GS-6 Advanced Medical Support Assistant to a GS-7 Supervisory Medical Support Assistant. Initial Appeal File (IAF), Tab 6 at 125. Due to her failure to complete a 1-year supervisory probationary period, on April 25, 2021, the agency demoted her back to a GS-6 Advance Medical Support Assistant position at the same step she held prior to the promotion. Id. at 22-23, 31, 39-40. The appellant filed an appeal challenging her demotion. IAF, Tab 1. In a show cause order, the administrative judge informed the appellant that she could appeal her demotion only if she made a nonfrivolous claim that it was based on partisan political reasons or marital status discrimination, and ordered her to file evidence and argument to establish the Board’s jurisdiction over her appeal. IAF, Tab 4 at 2-3. The appellant failed to file a response addressing Board jurisdiction. In an initial decision, the administrative judge dismissed the appeal for lack of jurisdiction. IAF, Tab 12, Initial Decision (ID) at 4-5. The appellant has filed a petition for review, Petition for Review (PFR) File, Tab 1, and the agency has filed a response, PFR File, Tab 3. ANALYSIS The Board’s jurisdiction over agency adverse actions includes, relevant to this case, reductions in pay or grade. 5 U.S.C. § 7512. The statute specifically excludes from such jurisdiction “the reduction in grade of a supervisor or manager who has not completed the probationary period under 5 U.S.C. § 3321(a)(2) if such reduction is to the grade held immediately before becoming such a supervisor or manager.” 5 U.S.C. § 7512(C). Section 3321(a)(2), in turn, provides for supervisory probationary periods and authorizes the issuance of2 regulations. One such regulation, promulgated at 5 C.F.R. § 315.908, limits Board appeal rights for any employee demoted to a nonmanagerial or nonsupervisory position for failure to complete such a probationary period to allegations that the demotion was based on partisan political affiliation or marital status. De Cleene v. Department of Education, 71 M.S.P.R. 651, 656 (1996). However, 5 U.S.C. § 3321 and its corresponding regulations in 5 C.F.R. §§ 315.901-315.909 apply to positions in the competitive service and do not apply to supervisory positions in the excepted service. Mouton-Miller v. Merit Systems Protection Board , 985 F.3d 864, 869 (Fed. Cir. 2021). Evidence in the record, including a Standard Form (SF) 50, indicates that the appellant’s Supervisory Medical Support Assistant position was in the excepted service. IAF, Tab 6 at 111, 117, 119, 125. For the Board to have jurisdiction over an adverse action appeal of a non-preference eligible individual in the excepted service,2 the individual must not be serving a probationary or trial period under an initial appointment pending conversion to the competitive service, or must have completed 2 years of current, continuous service in the same or similar positions in an Executive agency under other than a temporary appointment limited to 2 years or less. 5 U.S.C. § 7511(a)(1)(C). The administrative judge did not provide this information to the appellant. Because the Board must provide the appellant with explicit information on what is required to establish an appealable jurisdictional issue, a remand is appropriate. See Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). On remand, the administrative judge must notify the appellant that she may establish Board jurisdiction as a non-preference eligible individual in the excepted service by showing that she was not serving a probationary or trial period under an initial appointment pending conversion to the competitive 2 The appellant’s SF-50s identify her as a non-preference eligible. IAF, Tab 6 at 31, 125.3 service, or had completed 2 years of current, continuous service in the same or similar positions in an Executive agency under other than a temporary appointment limited to 2 years or less. 5 U.S.C. § 7511(a)(1)(C). The administrative judge must also notify the appellant that she must show that she was appointed to her Supervisory Medical Support Assistant position under 38 U.S.C. § 7401(3) for the Board to exercise jurisdiction over her appeal as an excepted service VHA employee. 5 U.S.C. § 7511(b)(10); see 38 U.S.C. § 7403(f)(3).3 After providing the required notice, the administrative judge shall afford the appellant the opportunity to establish jurisdiction according to these requirements. ORDER For the reasons discussed above, we remand this case to the New York Field Office for further adjudication in accordance with this Remand Order.4 FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C. 3 Although we remand this issue, certain evidence suggests that the appellant was appointed to her position pursuant to 38 U.S.C. § 7401(3). The SF-50 promoting the appellant to the Supervisory Medical Support Assistant listed the authority as 38 U.S.C. § 7403, which authorizes promotions of employees in positions appointed under 38 U.S.C. § 7401(3). IAF, Tab 6 at 125; see 38 U.S.C. § 7403(f)(1)(B), (h)(1). The agency’s Veterans Administration (VA) Handbook 5005 identifies 38 U.S.C. § 7401(3) as an authority under which Medical Support Assistants, which include Advanced and Supervisory Medical Support Assistants, may be appointed. VA Handbook 5005, pt. II, app. G45, pt. III, app. Q, https://www.va.gov/vapubs/viewPublication.asp? Pub_ID=1454&FType=2 (last visited Oct. 15, 2024). 4 In view of this disposition, we determine that it is unnecessary to address the merits of the appellant’s arguments here on petition for review.4	Leonard_Charmaine_C_NY-0752-21-0104-I-1_Remand_Order.pdf	2024-10-15	CHARMAINE C. LEONARD v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. NY-0752-21-0104-I-1, October 15, 2024	NY-0752-21-0104-I-1	NP
421	https://www.mspb.gov/decisions/nonprecedential/Payton_Amy_T_AT-1221-16-0592-B-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD AMY TERRELL PAYTON, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER AT-1221-16-0592-B-1 DATE: October 15, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Amy Terrell Payton , Gulfport, Mississippi, pro se. Johnston B. Walker and LaTasha C Clark, Jackson, Mississippi, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed her appeal as settled.2 Generally, we grant petitions such as this one 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 2 In her petition for review, the appellant alleges that she changed her bank account and routing numbers and has yet to receive payment from the agency, pursuant to the terms of the agreement. Petition for Review (PFR) File, Tab 1. In its response, the agency only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). ¶2A settlement agreement is a contract, the interpretation of which is a matter of law. Jackson v. Department of the Army , 123 M.S.P.R. 178, ¶ 6 (2016). In construing a settlement agreement, the Board “assign[s] to words their ordinary and commonly accepted meaning unless it is shown that the parties intend otherwise.” Id. (quoting Perry v. Department of the Army , 992 F.2d 1575, 1579 (Fed. Cir. 1993)). Here, the agreement explicitly provided that the appellant could revoke the agreement within 7 days “solely as to claims of age discrimination.” Thus, pursuant to the plain language of the agreement, the appellant could revoke her agreement to waive her age discrimination claims within 7 days. However, the appellant did not raise a discrimination claim in her Board appeal. The agreement does not contain any provision permitting the appellant to revoke the settlement agreement with respect to her other, non-age asserts that it processed the payment after receiving the appellant’s banking information, but it offers to locate the payment and send it to another account designated by the appellant. PFR File, Tab 3. To the extent the appellant is alleging that the agency has failed to comply with the terms of the settlement agreement, she may file a petition for enforcement with the Atlanta Regional Office. 5 C.F.R. § 1201.182(a). 2 discrimination claims, and the agreement therefore remains in effect despite her attempt to revoke it. Cf. Jackson, 123 M.S.P.R. 178, ¶ 11 (finding that the agreement in that case did not specify that the 7-day revocation period was limited to age discrimination claims). NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the 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). 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case, and 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 on4 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5 other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit 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 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Payton_Amy_T_AT-1221-16-0592-B-1_Final_Order.pdf	2024-10-15	AMY TERRELL PAYTON v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-16-0592-B-1, October 15, 2024	AT-1221-16-0592-B-1	NP
422	https://www.mspb.gov/decisions/nonprecedential/Kohlhapp_PaulaDE-0752-20-0252-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD PAULA KOHLHAPP, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER DE-0752-20-0252-I-1 DATE: October 11, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Georgia A. Lawrence , Esquire, and Shaun C. Southworth , Esquire, Atlanta, Georgia, for the appellant. Michael L. Gurnee , Esquire, Centennial, Colorado, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member* *Member Kerner recused himself and did not participate in the adjudication of this appeal. FINAL ORDER The appellant has filed a petition for review of the initial decision, which affirmed the agency’s removal action. Generally, we grant petitions such as this 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to supplement the analysis of the appellant’s claim of whistleblower retaliation and apply the proper standard to her equal employment opportunity (EEO) reprisal claim, we AFFIRM the initial decision. BACKGROUND The appellant was a Supervisory Immigration Services Officer with the agency’s U.S. Citizenship and Immigration Services department at its Nebraska Service Center. Initial Appeal File (IAF), Tab 5 at 13, 45. On February 14, 2020, the agency proposed to remove the appellant based on one charge of failure to follow instructions, with two specifications, and one charge of lack of candor, with one underlying specification. Id. at 45-47. Specifically, the agency asserted that the appellant failed to follow instructions when, on two separate occasions, she forwarded emails marked for management only to non-management employees. Id. at 45-46. Moreover, the agency asserted that the appellant lacked candor when, during an investigation by the agency’s Office of Security and Integrity (OSI) into the forwarding of management-only emails, the appellant denied the misconduct despite having forwarded the email in question. Id.2 at 46-47. After the appellant submitted a written reply, the deciding official sustained the second specification underlying Charge 1 but not the first specification.2 Id. at 14-18, 27-40. The deciding official also sustained Charge 2 and found that the penalty of removal was warranted. Id. at 14. The appellant filed a Board appeal arguing that the agency failed to prove the charges, asserting whistleblower retaliation and reprisal for prior EEO activity, and contending that the penalty of removal was too severe. IAF, Tab 1 at 16-29. Following a hearing, the administrative judge affirmed the agency’s removal action. IAF, Tab 20, Tab 22, Tab 27, Tab 29, Initial Decision (ID) at 1. The administrative judge sustained both charges and found that the appellant failed to establish her affirmative defenses of whistleblower retaliation and reprisal for prior EEO activity. ID at 6-27. Finally, the administrative judge found that the agency established the requisite nexus between the sustained charges and the efficiency of the service and that the penalty of removal was within the tolerable bounds of reasonableness. ID at 27-31. The appellant has filed a petition for review, arguing that the administrative judge erred in sustaining the charges, challenging the administrative judge’s analysis regarding her affirmative defenses, and asserting that the penalty of removal is unreasonable.3 Petition for Review (PFR) File, Tab 1 at 5-14. The agency has responded to the petition for review. PFR File, Tab 3. 2 Prior to the instant removal, the agency proposed and effected the appellant’s removal based on similar charges, which she appealed to the Board. Kohlhapp v. Department of Homeland Security , MSPB Docket No. DE-0752-19-0202-I-2 (0202 AF). Following the agency’s rescission of the original removal action therein, the administrative judge dismissed the appeal as moot. 0202 AF, Tab 9 at 1. The Board has issued a separate decision vacating the initial decision and remanding that matter to the Board’s field office for further adjudication, and its outcome has no effect on the instant appeal. Kohlhapp v. Department of Homeland Security , MSPB Docket No. DE-0752-19-0202-I- 2, Final Order (Oct. 11, 2024). 3 The appellant’s petition for review challenges both the instant removal appeal as well as her mootness appeal. PFR File, Tab 1 at 5, 15. As the mootness appeal is being addressed separately, we only address here the arguments concerning her removal appeal.3 DISCUSSION OF ARGUMENTS ON REVIEW The administrative judge correctly sustained the charges. The administrative judge correctly sustained the charge of failure to follow instructions. The agency’s second specification underlying Charge 1 charged the appellant with forwarding an email regarding overtime eligibility that was labeled “for the management team only” to a non-management employee. IAF, Tab 5 at 46. The administrative judge found that the appellant failed to follow instructions when she received a clear instruction not to forward the email in question to non-management individuals but did so anyway. ID at 6-11. The appellant argues that the agency did not provide proper instructions and that her forwarding of the email was unintentional. PFR File, Tab 1 at 7. We agree with the administrative judge. To prove a charge of failure to follow instructions, an agency must establish that the following elements: (1) the employee was given a proper instruction; and (2) she failed to follow the instruction, without regard to whether the failure was intentional or unintentional. Powell v. U.S. Postal Service, 122 M.S.P.R. 60, ¶ 5 (2014). As for the first element, the administrative judge found that the language in the email noting that it was “intended for the management team only” was a clear instruction not to forward the email to non-management and was a proper exercise of managerial authority. ID at 8. The appellant merely disagrees with this finding, asserting that she was not given proper instructions or a policy. PFR File, Tab 1 at 7. However, she fails to explain how the instruction at issue was improper or unclear. The Board will not disturb an administrative judge’s findings when he considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions. Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997); Broughton v. Department of Health and Human Services, 33 M.S.P.R. 357, 359 (1987). The email in question includes clear language instructing the recipients that it is for management only and further4 directs the recipients on how to handle union questions about the information contained therein. IAF, Tab 5 at 81-82. We find nothing improper about management sending an email for the management team only. Accordingly, we agree with the administrative judge, and the appellant’s arguments to the contrary are unpersuasive. As to the second element, the record contains an email sent from the appellant’s work email address to her personal email address forwarding the management email in question. IAF, Tab 10 at 6-7. The record further includes an email from the appellant’s personal email address to a non-management individual working with the agency’s union. Id. The appellant does not deny forwarding the email to a non-management individual but, rather, argued that it was done inadvertently and not intentionally. IAF, Tab 13 at 4, 21. However, intent is not an element of a charge of failure to follow instructions, and an agency may establish the charge without proving intent to willfully disobey the instructions. Powell, 122 M.S.P.R. 60, ¶ 5; Hamilton v. U.S. Postal Service , 71 M.S.P.R. 547, 555-57 (1996). Accordingly, we agree with the administrative judge that the agency proved the second element and, thus, that it proved the charge of failure to follow instructions.4 ID at 11. The administrative judge correctly sustained the lack of candor charge. The administrative judge found that the agency sufficiently proved that the appellant lacked candor when she denied forwarding the management-only email during the OSI investigation. ID at 11-15. The appellant challenges this finding, arguing that because she was not aware that she forwarded the email to the non-management individual, she did not knowingly provide inaccurate or incomplete information. PFR File, Tab 1 at 8-11. We are unpersuaded. 4 As the administrative judge noted, the agency only sustained specification two of the charge of failure to follow instructions. IAF, Tab 5 at 14. Nonetheless, when more than one specification supports a single charge, proof of one or more, but not all, of the supporting specifications is sufficient to sustain the charge. Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990). 5 Lack of candor “is a broader and more flexible concept” than falsification. Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647, ¶ 23 (2016) (citing Ludlum v. Department of Justice , 278 F.3d 1280, 1284 (Fed. Cir. 2002)), clarified by Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 23-24. However, although lack of candor does not require an “affirmative misrepresentation,” it “necessarily involves an element of deception.” Id. (citing Ludlum, 278 F.3d at 1284-85). A lack of candor charge requires proof of the following elements: (1) the employee gave incorrect or incomplete information; and (2) she did so knowingly. Id. As to the first element, we agree with the administrative judge that the appellant provided incorrect information when questioned about whether she had forwarded an email to a non-management individual. ID at 14. The record reflects that, when asked by the OSI investigators whether she had forwarded the email to a non-management individual, she responded “[t]o the best of my recollection . . . I did not . . . . I sent it to my home [email address] and I don’t recall forwarding it to anybody else.” IAF, Tab 5 at 145. She further stated, “I don’t recall doing it and I don’t believe I ever would.” Id. at 146. In a subsequent portion of the interview, the appellant again denied knowledge of forwarding the email, stating “[n]ot from me, I don’t believe so, not that I’m aware of.” Id. at 165. The record reflects that the appellant did in fact forward the email to a non-management individual. IAF, Tab 10 at 6-7. Accordingly, we agree with the administrative judge that her statement denying such conduct was incorrect. Regarding the second element, the crux of the appellant’s argument on review is that because she did not intend to forward the email, and was unaware that she had done so, she did not knowingly provide incorrect or incomplete information to the OSI investigators. PFR File, Tab 1 at 8-11. The administrative judge found that the appellant’s statements to the OSI investigators were not merely incorrect but also involved an element of deception in that when6 she responded, the appellant knew that she had forwarded an email to a non-management individual. ID at 14. In reaching this finding, the administrative judge made comprehensive credibility findings and specifically did not credit the appellant’s version of the events. ID at 9-11, 13. 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). The Board may overturn an administrative judge’s demeanor-based credibility determinations only when they are incomplete, inconsistent with the weight of the evidence, and do not reflect the record as a whole. Faucher v. Department of the Air Force , 96 M.S.P.R. 203, ¶ 8 (2004). Specifically, the administrative judge considered, but did not credit, the appellant’s testimony that she was very distracted due to an ongoing divorce and problems with her daughter and that she must have accidentally forwarded the email instead of putting it in a folder as intended. ID at 9-11. The administrative judge found it inherently improbable that the appellant, while attempting to put the email in a folder, would instead click forward, type something on the keyboard to populate the non -management individual’s email, and click send, all without noticing. ID at 10-11. Moreover, the administrative judge acknowledged the lack of apparent motive but found it immaterial to the issue of whether the appellant’s explanations were credible. ID at 11. We find that the administrative judge properly considered the record as a whole and made reasoned conclusions, and the appellant has not identified sufficiently sound reasons to overcome the special deference given to the administrative judge’s demeanor-based credibility determinations. Faucher, 96 M.S.P.R. 203, ¶ 8; see also Purifoy v. Department of Veterans Affairs , 838 F.3d 1367, 1373 (Fed. Cir. 2016) (finding that the Board7 must give deference to an administrative judge’s demeanor-based credibility determinations). Thus, in light of the finding that the appellant intentionally forwarded the email, we agree that she knowingly gave incorrect or incomplete information to the OSI investigators when she denied sending the email, denied recalling doing so, and asserted that she did not believe she ever would. Accordingly, the administrative judge correctly sustained the lack of candor charge. We agree with the administrative judge that the appellant failed to establish her affirmative defenses. The appellant argues that the agency’s removal action constituted whistleblower retaliation and reprisal for prior EEO activity. PFR File, Tab 1 at 12-13. The administrative judge considered both affirmative defenses but found that the appellant failed to meet her burden of proving any violations. ID at 15-27. The appellant failed to establish her affirmative defense of whistleblower retaliation. To prevail on an affirmative defense of whistleblower reprisal, once the agency proves its charges by a preponderance of the evidence, the appellant must demonstrate by preponderant evidence that she made a protected disclosure or engaged in protected activity and that the disclosure or activity was a contributing factor in the adverse action. Shibuya v. Department of Agriculture , 119 M.S.P.R. 537, ¶ 19 (2013). If the appellant establishes a protected disclosure or activity and contributing factor by preponderant evidence, then the burden of persuasion shifts to the agency to prove by clear and convincing evidence that it would have taken the same action in the absence of the appellant’s protected disclosure or activity. 5 U.S.C. § 1221(e)(2); Shibuya, 119 M.S.P.R. 537, ¶ 32. Here, the administrative judge found that the appellant met her burden of proving that she made protected disclosures and engaged in protected activity, and that these disclosures and activity were a contributing factor in the agency’s8 decision to remove her.5 ID at 15-22. The parties do not challenge these findings on review, and we decline to disturb them. The administrative judge additionally found that the agency proved, by clear and convincing evidence, that it would have taken the same personnel action in the absence of the appellant’s disclosures and activity. ID at 22-24. The appellant challenges the administrative judge’s weighing of the various factors in reaching this conclusion. PFR File, Tab 1 at 12-13. Although we agree with the appellant that the administrative judge did not correctly weigh the relevant factors, we nonetheless agree with the administrative judge’s determination that the agency met its burden of proof. In determining whether the agency has carried its burden, the Board will consider all the relevant facts and circumstances, including the following factors: (1) the strength of the agency’s evidence in support of its action; (2) the existence and strength of any motive to retaliate on the part of agency officials involved in the decision; and (3) any evidence that the agency takes similar actions against employees who are not whistleblower but who are otherwise similarly situated. Carr v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999). Regarding the first factor, the administrative judge found that the agency had strong evidence in support of the appellant’s removal. ID at 22-23. We agree with the administrative judge. The record evidence clearly established that the appellant failed to follow instructions when she forwarded the email to a non-management individual. IAF, Tab 10 at 6 -7. The Board has found that when an agency proves its charges, as is the case here, this is a factor weighing in favor of agency on the clear and convincing issue. Shibuya, 119 M.S.P.R. 537, ¶ 36; see also Pedeleose v. Department of Defense , 110 M.S.P.R. 508, ¶ 24 (finding the agency met its clear and convincing burden by, among other things, providing 5 The administrative judge found that the appellant alleged that she disclosed voucher fraud to the agency’s Office of Inspector General (OIG); disclosed to the OIG, Office of Special Counsel, and the agency’s OSI that the proposing official involved in the prior removal appeal engaged in inappropriate nepotism; and disclosed wrongdoing by her ex-husband, who was not an agency employee, to various OIGs. ID at 18-19.9 sufficient evidence to support the underlying charges), aff’d, 343 F. App’x 605 (Fed. Cir. 2009). Accordingly, because both charges were sustained and in light of the record and testimonial evidence supporting these charges, we agree with the administrative judge that the agency had strong evidence in support of its action. As to the second factor, the administrative judge found that the deciding official worked at a separate facility from the appellant, did not know the appellant or anyone involved with her whistleblowing, and only became aware of the appellant’s whistleblowing from the appellant’s written reply to the proposed removal. ID at 23. Other than a professional retaliatory motive, the administrative judge found no motive from the deciding official to retaliate, and thus concluded that this factor strongly supported the agency’s decision to remove the appellant. ID at 23-24. The appellant challenges the administrative judge’s analysis and conclusion that this factor weighed in favor of the agency. PFR File, Tab 1 at 12. As explained below, we find that the deciding official had some motive to retaliate. In Whitmore v. Department of Labor , 680 F.3d 1353 (Fed. Cir. 2012), the court found that “an agency official’s merely being outside that whistleblower’s chain of command, not directly involved in alleged retaliatory actions, and not personally named in the whistleblower’s disclosure is insufficient to remove the possibility of a retaliatory motive or retaliatory influence on the whistleblower’s treatment.” Id. at 1371. Thus, when applying the second factor, “the Board will consider any motive to retaliate on the part of the agency official who ordered the action, as well as any motive to retaliate on the part of other agency officials who influenced the decision.” Id. The court additionally recognized that individuals “responsible for the agency’s performance overall may well be motivated to retaliate even if they are not directly implicated by the disclosures, and even if they do not know the whistleblower personally, as the criticism reflects on them in their capacities as managers and employees.” Id. at 1370; see also Phillips v.10 Department of Transportation , 113 M.S.P.R. 73, 83 (2010) (finding that comments generally critical of agency’s leadership would reflect poorly on officials responsible for monitoring the performance of the agency). The appellant asserts that the proposing and deciding officials involved in the agency’s first removal action, which was subsequently rescinded, were aware of her whistleblowing and thus had a motive to retaliate. PFR File, Tab 1 at 12. She further asserts that the agency transferring the case to a different facility does not absolve the retaliatory motive, especially given that the deciding official in the instant removal action knew and interacted with the individuals involved in the first removal action. Id. Indeed, the evidence suggests that one of the appellant’s disclosures specifically alleged that the proposing official for the first removal action engaged in fraud, mismanagement, nepotism, and created a hostile working environment. IAF, Tab 14 at 42-51.6 Moreover, the deciding official knew, via the appellant’s written response to the proposed removal, that the appellant had engaged in numerous forms of whistleblowing against the first proposing and deciding officials, as well as the agency in general. IAF, Tab 5 at 34-35. Accordingly, we agree with the appellant that, at a minimum, the deciding official here had some motive to retaliate. See Whitmore, 680 F.3d at 1370 (recognizing that individuals responsible for the agency’s performance overall may have a motive to retaliate as whistleblowing criticism reflects on them in their capacities as managers and employees). This is bolstered by the fact that one of the disclosures at issue here directly implicated the first proposing official. See id. at 1371 (recognizing that the Board must consider any motive to retaliate 6 As the administrative judge noted, the attachments associated with the appellant’s written reply to the proposed removal, which contains the details of her disclosures regarding the first proposing official, were not included in conjunction with the written reply in the record. ID at 18. However, the attachments, as referenced in her written reply, are included in the appellant’s prehearing submissions. IAF, Tab 5 at 34 -35, Tab 14 at 42-71. As further evidence that the deciding official here received the attachments, she specifically references the nepotism disclosure in the removal decision. IAF, Tab 5 at 16.11 on the part of other agency officials who may have influenced the decision). Nonetheless, beyond their motives as individuals responsible for the agency’s performance, we find that the proposing and deciding officials here lacked a strong motive to retaliate because the whistleblowing was not directed at them and they did not work at the facility about which the appellant made disclosures. See Phillips, 113 M.S.P.R. 73, ¶ 29 (finding that, although one individual had a strong retaliatory motive, two other individuals more heavily involved in the agency’s adverse action lacked such a strong motive). In light of the above, we modify the administrative judge’s analysis and find that the agency officials involved in the instant removal action had some motive to retaliate. Finally, regarding the third factor, the administrative judge found that the absence of any evidence that the agency treated similarly situated nonwhistleblowers more favorably rendered the factor neutral. ID at 24. The appellant argues that the agency’s failure to present comparator evidence should weigh against the agency. PFR File, Tab 1 at 12-13. Although there is no affirmative burden on the agency to produce evidence with respect to each factor, to the extent such comparator evidence exists, the agency is required to come forward with all reasonably pertinent evidence relating to the third factor. Whitmore, 680 F.3d at 1374. An agency’s failure to do so may be at its own peril. Id. As a practical matter, the agency has far greater access to and control over evidence of prior disciplinary actions taken against its employees than a whistleblower-employee typically does. Id. According to the proposed removal, the agency was unable to find specific comparative discipline but stated that “similar comps found are consistent with the proposed penalty” of removal. IAF, Tab 5 at 48. It appears that the agency provided several other disciplinary actions brought by the agency for similar misconduct. IAF, Tab 19 at 46-91, 99-106. The administrative judge did not address these alleged comparators. Although several of the alleged comparator individuals held the same title as the appellant, they appear to have worked in12 different agency locations and with different chains of command. Id. at 46, 51, 60. Thus, it does not appear that they qualify as similarly situated nonwhistleblowers for purposes of this factor. See Whitmore, 680 F.3d at 1373 (noting that, for other employees to be deemed similarly situated, all relevant aspects of the appellant’s employment situation must be nearly identical to those of the comparative employees). Regardless, we find that the lack of comparator evidence cannot favor the agency. See id. at 1374 (finding an agency’s failure to produce comparator evidence may be at the agency’s peril). Overall, we find that the strength of the agency’s evidence in support of its action outweighs any slight motive to retaliate and lack of comparator evidence. See Phillips, 113 M.S.P.R. 73, ¶ 29 (finding the strength of the evidence in support of the agency’s action outweighed the motive to retaliate); see also Pedeleose, 110 M.S.P.R. 508, ¶ 24 (finding the clear and convincing burden met when the agency established a strong case in support of its action and the absence of a strong motive to retaliate by the officials responsible for the action). Accordingly, we agree with the administrative judge that the agency met its clear and convincing burden, and that accordingly, the appellant’s affirmative defense of whistleblower retaliation must fail. The appellant failed to establish her affirmative defense of reprisal for prior EEO activity. The appellant claimed that her removal was in retaliation for filing several EEO complaints stemming from an allegation of disability discrimination and harassment. IAF, Tab 5 at 34, Tab 13 at 13-14; Kohlhapp v. Department of Homeland Security , MSPB Docket No. DE-0752-19-0202-I-1, Tab 18 at 5-6. The administrative judge found that the appellant failed to establish that her prior EEO activity was a motivating factor in the agency’s removal decision. ID at 24-27. Although we agree with the administrative judge’s conclusion that the appellant failed to establish her affirmative defense, we clarify that the proper standard to apply in claims involving the protected activity at issue here is the13 “but-for” causation standard, and we modify the initial decision accordingly. Pridgen, 2022 MSPB 31, ¶ 47. Because we find that the appellant cannot meet the lesser motivating factor standard, we conclude that she does not meet the “but-for” standard. The outcome therefore remains the same. The appellant alleged that she filed numerous EEO complaints against the proposing official in the agency’s first removal action, in 2008 and 2011, in which that proposing official was involved in the mediation. IAF, Tab 13 at 20. Additionally, in December 2018, the appellant filed a formal EEO complaint against the proposing official. Id. at 13-14, 20. The appellant informed the deciding official in the instant appeal of her reprisal allegation in her reply to the proposed removal. IAF, Tab 5 at 34. However, the deciding official in the instant appeal was not named in any of the appellant’s EEO complaints, and there is no evidence of any ambiguous statements or comments that would suggest a retaliatory intent. Moreover, as discussed above, the agency’s reason for the removal was based on strong evidence, and the record supports a finding that the appellant engaged in the alleged misconduct. Therefore, the only indication that the appellant’s prior EEO activity was even a factor in the removal is the temporal proximity between the EEO complaint and her removal. We find that this temporal proximity alone does not establish that the protected activity was a motivating factor, let alone establish that it was a “but-for” cause of her removal. The appellant does not challenge any of the specifics of the administrative judge’s findings, but rather, she merely asserts that her arguments regarding whistleblower retaliation are applicable to her EEO reprisal arguments. PFR File, Tab 1 at 13. We find that this is insufficient to disturb the administrative judge’s findings. Accordingly, the appellant has not established her affirmative defense of reprisal for prior EEO activity. 14 The administrative judge correctly found that the agency established nexus and that the penalty of removal was reasonable. The administrative judge found a nexus between the charged misconduct and the efficiency of the service. ID at 27-28. The appellant asserts that because the agency cannot prove its charge of lack of candor, a nexus does not exist. PFR File, Tab 1 at 11-12. We are unpersuaded. As set forth above, we agree with the administrative judge that the agency sufficiently established both charges. Moreover, the Board has found a nexus established based on a charge of failure to follow instructions as it relates directly to the efficiency of the appellant’s service. Archerda v. Department of Defense , 121 M.S.P.R. 314, ¶ 24 (2014). As for the penalty, the administrative judge found that the deciding official considered the relevant aggravating and mitigating factors and that the penalty of removal was within the tolerable limits of reasonableness. ID at 28-31. The appellant asserts that the penalty is excessive. PFR File, Tab 1 at 13-14. When, as here, all of the agency’s charges have been sustained, the Board will review an agency-imposed penalty only to determine if the agency considered all of the relevant factors and exercised management discretion within tolerable limits of reasonableness. Archerda, 121 M.S.P.R. 314, ¶ 25. In determining whether the selected penalty is reasonable, the Board gives due deference to the agency’s discretion in exercising its managerial function of maintaining employee discipline and efficiency. Id. After reviewing the record, we find that the deciding official properly considered the relevant factors in making her penalty determination. IAF, Tab 5 at 14-16, 22-25. The appellant argues that there was no evidence of intent, which should have been considered a mitigating factor. PFR File, Tab 1 at 13-14; see Arena v. U.S. Postal Service , 121 M.S.P.R. 125, ¶ 6 (2014) (noting that, in evaluating the penalty, the Board will consider, first and foremost, the nature and seriousness of the misconduct, including whether the offense was intentional), aff’d per curiam , 617 F. App’x 996 (Fed. Cir. 2015) (Table). As discussed above,15 we defer to the administrative judge’s credibility finding that the appellant intended to forward the email in question. ID at 11. The appellant further argues that, even if the forwarding were intentional, there must be an explanation of the intent to warrant using it as an aggravating factor. PFR File, Tab 1 at 14. Indeed, both the proposing and deciding officials here found the appellant’s misconduct to be intentional and considered this in their penalty analysis. IAF, Tab 5 at 14-15, 47. Regardless, the Board has held that, if an agency proves an employee’s failure to follow instructions was intentional rather than merely negligent, it is free to use that fact as an aggravating factor in the penalty selection. Hamilton, 71 M.S.P.R. at 556. Accordingly, the deciding official did not err in considering this factor as aggravating. Finally, the appellant again claims that because the lack of candor charge should not be sustained, the removal penalty is excessive. As discussed above, we find that the administrative judge correctly sustained the lack of candor charge. The appellant points to no other relevant mitigating or aggravating factors that the deciding official failed to properly consider. Accordingly, we find that the penalty of removal was within the tolerable limits of reasonableness. Archerda, 121 M.S.P.R. 314, ¶ 27. NOTICE OF APPEAL RIGHTS7 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the 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 7 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.16 regarding which cases fall within their jurisdiction. If you wish 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 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The17 Board 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. 420 (2017). If you have a representative in this case, and 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 file18 with the EEOC no later than 30 calendar days after your representative 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.8 The court of appeals must receive your 8 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 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. 19 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. 20 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.21	Kohlhapp_PaulaDE-0752-20-0252-I-1_Final_Order.pdf	2024-10-11	PAULA KOHLHAPP v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DE-0752-20-0252-I-1, October 11, 2024	DE-0752-20-0252-I-1	NP
423	https://www.mspb.gov/decisions/nonprecedential/Kohlhapp_PaulaDE-0752-19-0202-I-2_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD PAULA KOHLHAPP, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER DE-0752-19-0202-I-2 DATE: October 11, 2024 THIS ORDER IS NONPRECEDENTIAL1 Georgia A. Lawrence , Esquire, and Shaun C. Southworth , Esquire, Atlanta, Georgia, for the appellant. Michael L. Gurnee , Esquire, Centennial, Colorado, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member* *Member Kerner recused himself and did not participate in the adjudication of this appeal. REMAND ORDER The appellant has filed a petition for review of the initial decision, which dismissed her removal appeal as moot and found that she was not entitled 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 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). compensatory damages. For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the initial decision, and REMAND the case to the Denver Field Office for further adjudication in accordance with this Remand Order. BACKGROUND The appellant was a Supervisory Immigration Services Officer with the agency’s U.S. Citizenship and Immigration Services department at its Nebraska Service Center. Kohlhapp v. Department of Homeland Security , MSPB Docket No. DE-0752-19-0202-I-1, Initial Appeal File (IAF), Tab 7 at 12. On January 15, 2019, the agency proposed to remove her based on one charge of failure to follow instructions and one charge of lack of candor. Id. at 35-36. After the appellant submitted a written response, the deciding official sustained the charged misconduct and affirmed the penalty of removal. Id. at 13-15. The appellant filed a Board appeal challenging her removal and alleging whistleblower retaliation and reprisal based on prior equal employment opportunity (EEO) activity. IAF, Tab 1, Tab 18 at 4-6. The administrative judge subsequently held a hearing. IAF, Tab 28, Tab 30. After the hearing, the agency informed the Board that it intended to rescind the removal action, expunge the associated documents from the appellant’s record, and return her to work, thus rendering the appeal moot. IAF, Tab 33 at 4. The agency informed the Board that this process would take between 90 and 120 days to complete. Id. The administrative judge then dismissed the appeal without prejudice to refile pending the agency’s restoration of the appellant to the status quo ante. IAF, Tab 38 at 1-4. The appellant subsequently refiled her appeal alleging that she had not been restored to the status quo ante. Kohlhapp v. Department of Homeland Security , MSPB Docket No. DE-0752-19-0202-I-2, Appeal File (I-2 AF), Tab 1 at 3. The administrative judge ordered the appellant to show cause as to why the appeal2 should not be dismissed as moot, and, after the parties responded, the administrative judge issued an initial decision dismissing the appeal as moot. I-2 AF, Tabs 4-6, Tab 9, Initial Decision (ID) at 1. Therein, the administrative judge found that the agency presented compelling reasons for not returning the appellant to an on-duty paid status, but rather placing her on administrative leave in a non-duty paid status pending a second removal action.2 ID at 6-8. Accordingly, the administrative judge found that the agency otherwise returned the appellant to the status quo ante. ID at 8. The administrative judge then addressed the appellant’s outstanding claims for damages based on whistleblower retaliation and reprisal for prior EEO activity, but found that the appellant failed to meet her burden as to both affirmative defenses. ID at 9-23. The appellant has filed a petition for review, arguing that her appeal is not moot because the agency has failed to return her to the status quo ante.3 Petition for Review (PFR) File, Tab 1 at 15. She further challenges the administrative judge’s analysis regarding her affirmative defenses of whistleblower retaliation and reprisal for prior EEO activity. Id. at 15-16. The agency has responded to her petition for review. PFR File, Tab 3. 2 The agency subsequently took a second removal action against the appellant, which she similarly appealed to the Board. Kohlhapp v. Department of Homeland Security , MSPB Docket No. DE-0752-20-0252-I-1. The administrative judge therein issued an initial decision affirming the agency’s removal action. Kohlhapp, MSPB Docket No. DE-0752-20-0252-I-1, Initial Decision at 1 (Feb. 18, 2021). The second removal appeal is being addressed by the Board separately, and its outcome has no effect on the instant appeal. 3 The appellant’s petition for review here challenges both the instant mootness appeal and the second removal appeal. PFR File, Tab 1 at 4, 14. As the second removal appeal is being addressed separately, we only address the arguments concerning the mootness of her original appeal.3 DISCUSSION OF ARGUMENTS ON REVIEW The administrative judge erroneously determined that the first removal appeal was moot. The Board’s jurisdiction is determined by the nature of an agency’s action at the time an appeal is filed with the Board. Sredzinski v. U.S. Postal Service , 105 M.S.P.R. 571, ¶ 4 (2007). An agency’s unilateral modification of its adverse action after an appeal has been filed cannot divest the Board of jurisdiction unless the appellant consents to such divesture or unless the agency completely rescinds the action being appealed. Id. Thus, the Board may dismiss an appeal as moot if the appealable action is canceled or rescinded by the agency. Id. For an appeal to be deemed moot, the agency’s rescission must be complete, i.e., the appellant must be returned to the status quo ante and not left in a worse position as a result of the cancellation than she would have been in if the matter had been adjudicated and she had prevailed. Price v. U.S. Postal Service , 118 M.S.P.R. 222, ¶ 8 (2012). If an appeal is not truly moot despite cancellation of the action under appeal, the proper remedy is for the Board to retain jurisdiction and to adjudicate the appeal on the merits. Id. An agency does not return an employee to the status quo ante when it rescinds the appealed action and then, instead of returning the appellant to duty, places her on administrative leave pending a second proposed removal action. See Sredzinski, 105 M.S.P.R. 571, ¶ 8; Hudson v. Department of Housing and Urban Development , 54 M.S.P.R. 139, 142 (1992). However, an appeal may be considered moot notwithstanding the agency’s refusal to return the appellant to duty status if the agency’s refusal to do so is supported by a strong overriding interest. See Sredzinski, 105 M.S.P.R. 571, ¶ 8; see also Shelton v. U.S. Postal Service, 53 M.S.P.R. 483, 485 (1992) (finding that an agency’s failure to restore an appellant to his former position must be supported by a strong overriding interest). 4 The administrative judge found that the agency demonstrated a compelling reason for not returning the appellant to her position of record based upon the agency’s concerns about the appellant’s conduct in that position and because of the pending second removal action. ID at 8. At the outset, we note that the agency did not affirmatively make this argument; rather, the agency merely submitted highlighted portions of its administrative leave policies. I -2 AF, Tab 6 at 94. Per the policies, the agency may place an employee in an administrative leave status when there is reasonable cause to believe the employee has committed a criminal offense, or “where there is a threat to employees or property (or information/databases).” Id. The agency has not shown that any of these situations are present here. Furthermore, the existence of a second pending removal, on its own, is not sufficient to establish a strong overriding interest. See Sredzinski, 105 M.S.P.R. 571, ¶ 8 (finding that an agency’s placement of an appellant on administrative leave pending the resolution of a subsequent proposed removal, standing alone, was not sufficient to establish a strong overriding interest); see also Noble v. Department of Justice , 68 M.S.P.R. 524, 527 (1995) (determining that the appellant was not returned to the status quo ante when the agency placed him on administrative leave pending the outcome of a proposed removal action); Hudson, 54 M.S.P.R. at 139, 142; Cf. Dalton v. Department of Justice, 66 M.S.P.R. 429, 434 (1995) (finding compelling reasons for not returning an employee to duty status based on the agency’s proffered concerns, in the form of an affidavit, about the appellant’s possible sexual contacts with inmates and the agency’s ongoing investigation). Further still, the agency did not place the appellant in an administrative leave status pending the outcome of the first proposed removal, which cuts against any argument regarding concerns about the appellant’s conduct in her position. IAF, Tab 7 at 39; see Rickels v. Department of the Treasury , 42 M.S.P.R. 596, 603 -04 (1989) (finding unpersuasive the agency’s argument that the employee could not be trusted in his prior position when it did not place him in an administrative duty status pending5 its removal action). Accordingly, we find that the administrative judge erred in determining that the agency demonstrated a strong overriding interest in not returning the appellant to a duty status. Although the administrative judge erred in finding that the agency had a strong overriding interest, the matter may now be moot because the agency removed the appellant a second time. Kohlhapp v. Department of Homeland Security, MSPB Docket No. DE-0752-20-0252-I-1, Tab 1 at 30-34; see Dellera v. Department of Housing and Urban Development , 65 M.S.P.R. 636, 642 (1994) (finding that an appeal could still be dismissed as moot despite the possibly improper placement of an employee on administrative leave following rescission of a removal action because the agency had removed the employee a second time, precluding any effective relief), aff’d, 82 F.3d 434 (Fed. Cir. 1996) (Table) and overruled on other grounds by Haskins v. Department of the Navy , 106 M.S.P.R. 616 (2007). However, the matter is not moot if the appellant lost overtime pay due to her improper placement on administrative leave. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105 (1997) (finding that an employee is entitled to recover any overtime or other lost pay she would have earned during a period of erroneously enforced administrative leave); Rauccio v. U.S. Postal Service , 44 M.S.P.R. 243, 245 (1990) (finding an appeal was not moot when the appellant was placed on administrative leave pending a new removal action and may not have received night differential pay during this administrative leave period). The appellant asserted before the administrative judge that, during the period that she was placed on administrative leave pending the second removal, she was not allowed to earn overtime hours. I-2 AF, Tab 5 at 16. The administrative judge did not address this argument. Because the agency did not refute the appellant’s claimed entitlement to overtime pay or otherwise provide a full accounting of the appellant’s back pay award, we must remand this appeal to address this matter.6 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. Rittgers v. Department of the Army , 123 M.S.P.R. 31, ¶ 13 (2015). Although the appellant is not entitled to receive a windfall, she is entitled to be restored to the status quo ante, and the agency must use the method of computation most likely to achieve this goal. Id. The appellant additionally argued that her placement on administrative leave forced her to incur a cost associated with Microsoft Outlook due to her loss of access to her Government email or computer, and also that she was not allowed to receive a yearly bonus because her performance appraisal was delayed by her placement on administrative leave. I-2 AF, Tab 5 at 14. On remand, the administrative judge should permit the parties to engage in discovery, as necessary, to address any pay lost as a result of the agency placing the appellant on administrative leave following rescission of its initial removal action. Because there remains a factual dispute as to whether the appellant has received all of the relief that she could have received if the matter had been adjudicated and she had prevailed, these matters must be addressed and resolved before the appeal can be dismissed as moot. We remand the appellant’s affirmative defenses for further adjudication. In addition to the aforementioned issues regarding whether the agency returned the appellant to status quo ante sufficient to render the appeal moot, there remains the issue of the appellant’s entitlement to damages based on both her claim of whistleblower retaliation and reprisal for prior EEO activity. See Jenkins v. Environmental Protection Agency , 118 M.S.P.R. 161, ¶ 13 (2012) (finding an appeal not moot when the appellant could obtain further relief based on her whistleblowing reprisal claim); Harris v. Department of the Air Force , 96 M.S.P.R. 193, ¶ 11 (2004) (finding rescission of an adverse action does not render an appeal moot when the appellant may be entitled to compensatory damages based on a claim of reprisal for prior EEO activity).7 The administrative judge erred in his analysis of the appellant’s affirmative defense of whistleblower retaliation. To prevail on an affirmative defense of whistleblower reprisal, once the agency proves its adverse action case by a preponderance of the evidence, the appellant must demonstrate by preponderant evidence that she made a protected disclosure or engaged in protected activity and that the disclosure or activity was a contributing factor in the adverse action. Shibuya v. Department of Agriculture , 119 M.S.P.R. 537, ¶ 19 (2013). If the appellant establishes a protected disclosure or activity and contributing factor by preponderant evidence, then the burden of persuasion shifts to the agency to prove by clear and convincing evidence that it would have taken the same action in the absence of the appellant’s protected disclosure or activity. 5 U.S.C. § 1221(e)(2); Shibuya, 119 M.S.P.R. 537, ¶ 32. The appellant here alleged that she disclosed voucher fraud to the agency’s Office of Inspector General (OIG), disclosed to the OIG, Office of Special Counsel (OSC), and the agency’s Office of Security and Integrity (OSI) that the proposing official engaged in inappropriate nepotism, and disclosed wrongdoing by her ex-husband to various OIGs. PFR File, Tab 1 at 15-16. The administrative judge found that, as part of her prima facie burden of proof, the appellant sufficiently demonstrated that she had made protected disclosures and engaged in protected activity. ID at 9-13. The parties do not challenge these findings on review, and we decline to disturb them. The administrative judge nonetheless found that the appellant failed to establish that her whistleblowing was a contributing factor in the agency’s removal action. ID at 14-19. The appellant challenges this finding, arguing that the proposing and deciding officials had both actual and constructive knowledge of her whistleblowing in close proximity to the agency’s adverse action. PFR File, Tab 1 at 15-16. An employee may demonstrate that a disclosure was a contributing factor in a personnel action through circumstantial evidence, such as evidence that the official taking the personnel action knew of the disclosure, and that the personnel8 action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action. Chambers v. Department of the Interior , 116 M.S.P.R. 17, ¶ 25 (2011) . Moreover, an appellant can show that a disclosure was a contributing factor in a personnel action by proving that the official taking the action had constructive knowledge of the protected disclosure. Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 11 (2012). An appellant may establish constructive knowledge by demonstrating that an individual with actual knowledge of the disclosure influenced the official accused of taking the retaliatory action. Id. The U.S. Supreme Court has adopted the term “cat’s paw” to describe a case in which a particular management official, acting because of an improper animus, influences an agency official who is unaware of the improper animus when implementing a personnel action. Id. The appellant alleged that the proposing official in the first removal action was the cat’s paw. PFR File, Tab 1 at 15. On review, the appellant alleged that the proposing official had actual knowledge of her whistleblowing prior to proposing her removal, including her disclosure from 2013 or 2014 to the agency’s OIG regarding voucher fraud by a union official, her 2018 disclosure regarding her ex-husband to various OIGs, as well as her separate disclosures to the OIG, OSC, and the agency’s OSI alleging that the proposing official engaged in inappropriate nepotism. Id. at 15-16. The administrative judge did not make a finding as to whether the proposing official had actual knowledge of these disclosures and activities prior to the proposed removal. Rather, the administrative judge found that the proposing official’s role was “ministerial,” and thus she could not have influenced the deciding official. ID at 18-19. In support of this finding, the administrative judge noted that the proposing official played no role in initiating the OSI investigation that led to the removal action. Id. We find that this was erroneous. 9 Regardless of whether the proposing official played a role in initiating the investigation that led to the agency’s removal action, she nonetheless determined both of the charges to levy against the appellant and the penalty to be proposed. IAF, Tab 7 at 35-38. As such, the proposing official played more than a ministerial role in the agency’s action, and her knowledge of the appellant’s whistleblowing could have influenced the deciding official. See Chambers, 116 M.S.P.R. 17, ¶ 58 (noting that a proposing official’s strong motive to retaliate may be imputed to a deciding official). On remand, the administrative judge must make findings regarding whether the proposing official had actual knowledge of the appellant’s whistleblowing, and therefore whether the deciding official had constructive knowledge of the whistleblowing. In this regard, the appellant testified that she had discussed her nepotism claim “for years” with numerous agency individuals, including directly with the proposing official, as well as with the Chief of Staff who initiated the OSI investigation that led to the agency’s removal action. IAF, Tab 7 at 54-56; Tab 30, Hearing Compact Disc (HCD) 2, File 4 at 41:00 (testimony of the appellant). The appellant further testified that she specifically told the proposing official about her 2018 disclosures to various OIGs regarding her ex-husband. HCD2, File 4 at 42:10 (testimony of the appellant). As discussed above, the administrative judge made no findings as to whether the proposing official had any knowledge of these disclosures prior to issuing the proposed removal. Should the administrative judge find such constructive knowledge on remand, he must then determine whether the agency has proven by clear and convincing evidence that it would have taken the adverse action in the absence of the appellant’s whistleblowing. The administrative judge erred in his analysis of the appellant’s affirmative defense of reprisal for prior EEO activity. The administrative judge found that, although the deciding official was vaguely aware of the appellant’s EEO activity, there was insufficient evidence to10 demonstrate any animus or motive to retaliate against the appellant. ID at 22. For the same reasons set forth in his analysis of the appellant’s whistleblower retaliation affirmative defense, the administrative judge similarly found that the proposing official did not influence the deciding official. ID at 22-23. The appellant on review challenges this analysis, again arguing that the proposing official was the cat’s paw. PFR File, Tab 1 at 12, 15-16. Following issuance of the initial decision, the Board has clarified the standard appropriate in cases of reprisal for protected activity based upon her disability, which are protected under the Rehabilitation Act. Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 44-47. The Board has recognized that a more stringent standard applies in the context of retaliation claims arising under the Rehabilitation Act, such that the appellant must prove that her prior EEO activity was a “but-for” cause of the retaliation. Id. The appellant here alleges that she filed EEO complaints in which she complained of disability discrimination. IAF, Tab 18 at 5-6. Specifically, she alleges that she has filed numerous EEO complaints against the proposing official, in 2008 and 2011, in which the proposing official was involved in mediation. IAF, Tab 23 at 17. Moreover, in October 2018, the appellant contacted an agency EEO counselor, and on December 10, 2018, the appellant filed a formal EEO complaint against the proposing official. Id. at 10-26. On December 17, 2018, the appellant informed both the proposing and deciding officials that she had filed a formal EEO complaint alleging reprisal and a hostile work environment. IAF, Tab 24 at 46. Less than 1 month later, on January 15, 2019, the agency proposed her removal. IAF, Tab 7 at 35. The administrative judge’s failure to consider the proposing official’s knowledge of the appellant’s numerous EEO complaints specifically against her, and the short proximity between the December 2018 EEO complaint and the proposed removal, was erroneous. See Naval Station Norfolk-Hearing 2 v. Department of the Navy , 123 M.S.P.R. 144, ¶ 30 (2016) (noting that an individual’s role in the11 decision-making process that leads to an adverse action cannot be ignored in considering a claim of discrimination). Accordingly, on remand the administrative judge must consider these issues and any applicable evidence in addressing the appellant’s affirmative defense. As set forth above, the administrative judge must apply the “but-for” causation standard in analyzing the appellant’s claims of retaliation for her prior protected activity under the Rehabilitation Act. ORDER For the reasons discussed above, we remand this case to the Denver Field Office for further adjudication in accordance with this Remand Order.4 FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C. 4 In the remand initial decision, the administrative judge may reincorporate prior findings as appropriate, consistent with this Remand Order.12	Kohlhapp_PaulaDE-0752-19-0202-I-2_Remand_Order.pdf	2024-10-11	PAULA KOHLHAPP v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DE-0752-19-0202-I-2, October 11, 2024	DE-0752-19-0202-I-2	NP
424	https://www.mspb.gov/decisions/nonprecedential/Tippins_Sabrina_A_DC-3443-20-0685-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SABRINA A. TIPPINS, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER DC-3443-20-0685-I-1 DATE: October 11, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Sabrina A. Tippins , Moyock, North Carolina, pro se. Aramide Pasay , Norfolk, Virginia, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member * *Member Kerner recused himself and did not participate in the adjudication of this appeal. FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed her nonpromotion appeal for lack of jurisdiction. For the reasons set 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). forth below, the appellant’s petition for review is DISMISSED as untimely filed without good cause shown. 5 C.F.R. § 1201.114(e), (g). BACKGROUND The appellant, a GS-13 Workforce Coordinator, applied for a GS-14 Chief of Mission Support Division position but was not selected for the promotion. Initial Appeal File (IAF), Tab 1 at 1, 5. The appellant filed the instant appeal, challenging the nonselection. Id. The administrative judge issued an order to show cause on the issue of jurisdiction. IAF, Tab 3. After the parties responded, she issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tabs 4-5, 8, Tab 10, Initial Decision (ID) at 1, 7. The decision notified the appellant that it would become final on November 5, 2020, unless a petition for review was filed by that date. ID at 7. On November 9, 2020, the appellant filed a petition for review of the initial decision. Petition for Review (PFR) File, Tab 1 at 3. The Acting Clerk of the Board subsequently notified the appellant that her petition for review appeared to be untimely and provided her with an opportunity to submit a motion requesting either to accept the filing as timely or waive the time limit for good cause. PFR File, Tab 2 at 1-2. The appellant has not responded to the Acting Clerk’s notification. The agency has responded to the petition for review. PFR File, Tab 3. DISCUSSION OF ARGUMENTS ON REVIEW The petition for review is untimely filed. The initial decision indicated that the appellant’s petition for review had to be filed by November 5, 2020. ID at 7. However, the appellant did not file her petition for review until November 9, 2020, four days after the deadline. PFR File, Tab 1. The Board’s regulations provide that a petition for review must be filed within 35 days of the issuance of the initial decision or, if the appellant shows that the initial decision was received more than 5 days after the date of2 issuance, within 30 days after the date she received the initial decision. 5 C.F.R. § 1201.114(e). Although the appellant has not submitted a motion in support of her untimely petition for review, in her petition for review she asserted that she does not know when she received the initial decision. PFR File, Tab 1 at 3. The appellant was registered as an e-filer at the time and, therefore, is deemed to have received the administrative judge’s orders on the date of electronic submission, pursuant to 5 C.F.R. § 1201.14(m)(2) (2020). Rivera v. Social Security Administration, 111 M.S.P.R. 581, ¶ 5 (2009); IAF, Tab 1 at 2, Tab 11. Further, as an e-filer, the appellant was responsible for monitoring her case activity at e-Appeal to ensure that she received all case-related documents. 5 C.F.R. § 1201.14(j)(3) (2020). We deem the appellant to have received the initial decision on October 1, 2020, the date it was electronically issued. ID at 1; IAF, Tab 11. Her deadline for filing a petition for review was 35 days later, on November 5, 2020. PFR File, Tab 2 at 1. Therefore, the appellant’s November 9, 2020 petition for review was filed 4 days untimely. The appellant has failed to demonstrate good cause for her untimely filed petition for review. In her petition for review, the appellant stated as good cause for her untimely filing that her equal employment opportunity (EEO) “investigation just arrived and shows substantial discrimination as evidence.” PFR File, Tab 1 at 3. The Board will waive its filing deadline only upon a showing of good cause for the delay in filing. 5 C.F.R. §§ 1201.114(f)-(g). To establish good cause for an untimely filing, a party must show that she exercised due diligence or ordinary prudence under the particular circumstances of the case. Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184 (1980). 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 comply3 with the time limits or of unavoidable casualty or misfortune which similarly shows a causal relationship to her inability to timely file her petition. Moorman v. Department of the Army, 68 M.S.P.R. 60, 62-63 (1995), aff'd, 79 F.3d 1167 (Fed. Cir. 1996) (Table). The discovery of new evidence may constitute good cause for waiver of the Board’s filing deadline if the evidence was not readily available before the close of the record below and is of sufficient weight to warrant an outcome different from that of the initial decision. Minnich v. Office of Personnel Management, 63 M.S.P.R. 573, 575 (1994), aff’d per curiam, 53 F.3d 348 (Fed. Cir. 1995) (Table). Applying the Moorman factors, we find that the appellant has failed to establish good cause for her untimely petition for review. Although the appellant is proceeding pro se and her delay in filing was only 4 days, she has not provided any explanation as to why she was unable to timely file her petition for review or request an extension. See Rivera, 111 M.S.P.R. 581, ¶¶ 6-7 (declining to excuse a pro se appellant’s 5-day delay in filing a petition for review allegedly caused by the loss of electricity during a portion of the filing period). To the extent the appellant argues that her recent receipt of an EEO report of investigation shows good cause, we are not persuaded. PFR File, Tab 1 at 3. The appellant did not submit the report of investigation, provide the date she received it, or otherwise establish that the information in the report was unavailable when the record closed, despite her due diligence. Id. Therefore, we find that the appellant has not presented new evidence on which to grant review of the initial decision. Mills v. U.S. Postal Service, 119 M.S.P.R. 482, ¶¶ 3, 5 (2013) (finding the Board would not consider the appellant’s EEO report of investigation because the appellant failed to show that the information in the documents was unavailable before the close of record). The appellant may be attempting to assert that she should be subject to the deadlines applicable to filing mixed-case appeals, which are in some instances triggered by the agency’s processing of the employee’s EEO complaint.4 See 5 C.F.R. § 1201.154 (discussing these deadlines). This argument is unavailing. The appellant’s untimely filing here was a petition for review, not an initial appeal subject to the deadlines in 5 C.F.R. § 1201.154. In any event, the appellant’s alleged nonpromotion cannot serve as the basis for a mixed-case appeal because a nonpromotion is not an otherwise appealable action. See Pridgen v. Office of Management and Budget, 117 M.S.P.R. 665, ¶¶ 4, 7 (2012) (explaining that the Board did not have jurisdiction over an appeal as a mixed case because a nonselection is not an otherwise appealable action). Accordingly, we dismiss the petition for review as untimely filed. This is the final decision of the Merit Systems Protection Board regarding the timeliness of the petition for review. The initial decision remains the final decision of the Board regarding the nonpromotion appeal. 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 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.5 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 obtain6 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, and 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 7 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 8 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.9	Tippins_Sabrina_A_DC-3443-20-0685-I-1_Final_Order.pdf	2024-10-11	SABRINA A. TIPPINS v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-3443-20-0685-I-1, October 11, 2024	DC-3443-20-0685-I-1	NP
425	https://www.mspb.gov/decisions/nonprecedential/Sinha_SangeetaPH-0752-23-0309-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SANGEETA SINHA, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER PH-0752-23-0309-I-1 DATE: October 11, 2024 THIS ORDER IS NONPRECEDENTIAL1 Sangeeta Sinha , Lake Hopatcong, New Jersey, pro se. Matthew D. Nafus , Esquire, Picatinny Arsenal, New Jersey, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member REMAND ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed her adverse action appeal as premature. For the reasons discussed below, we GRANT the appellant's petition for review, VACATE the initial decision, and REMAND the case to the regional office for further adjudication in accordance with this Remand Order. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). BACKGROUND ¶2The appellant was employed by the agency as a DE-02, Program Analyst. Initial Appeal File (IAF), Tab 6 at 9. On July 6, 2023, the agency issued the appellant a notice of proposed removal, and she filed an initial appeal challenging the proposed action on the same day. IAF, Tab 1 at 4, Tab 6 at 11, 25. The administrative judge issued an order to show cause, which advised the appellant of her burden of proof and the legal standard for establishing jurisdiction over an adverse action appeal. IAF, Tab 3 at 1-2. In response to the order, the appellant filed a request to withdraw her appeal because it “is in [the] very initial stage.” IAF, Tab 4 at 3. The agency responded, arguing that the case should be dismissed for lack of jurisdiction because it had not yet issued a decision on the proposed removal. IAF, Tab 6 at 5. ¶3On August 2, 2023, the administrative judge issued an initial decision that found “it is undisputed that the appellant has only been issued a proposal to remove.” IAF, Tab 7, Initial Decision (ID) at 2. Accordingly, the administrative judge dismissed the appeal and advised the appellant that “if the agency eventually takes an adverse action over which the Board has jurisdiction . . . an opportunity to file another Board appeal will be provided.” ID at 2-3. ¶4The appellant has filed a timely petition for review, in which she challenges her removal. Petition for Review (PFR) File, Tab 1 at 3-4. She attaches her written response to the proposal. Id. at 5-11. The agency has not responded to the petition for review. The Clerk of the Board has issued an order (Clerk’s Order) to both parties to submit argument and evidence as to whether the agency has issued the appellant a decision in connection with the proposal to remove her. PFR File, Tab 3 at 2. In response, the agency states that on August 4, 2023, two days after the issuance of the initial decision, the agency issued the appellant a Decision on Notice of Proposed Removal, which found that the evidence supported the charges laid out in the Notice of Proposed Removal and stated that her removal was effective on August 5, 2023. PFR File, Tab 4 at 4. The agency2 submits a copy of the removal decision. Id. at 9-13. The appellant has not responded to the Clerk’s Order. DISCUSSION OF ARGUMENTS ON REVIEW ¶5In his initial decision, the administrative judge found that the Board did not have jurisdiction over the appellant’s adverse action appeal because no appealable action had yet been taken. ID at 2-3. On review, the agency has provided evidence that the proposed removal has now been effectuated. PFR File, Tab 4 at 9-13. ¶6The 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 has chapter 75 jurisdiction over a removal but not a proposed removal. Cruz v. Department of the Navy, 934 F.2d 1240, 1243 (Fed. Cir. 1991) (holding that “[b]ecause mere proposals to remove are not listed in [5 U.S.C.] § 7512, they are not appealable adverse actions . . . and the Board has no jurisdiction over them”). At the time the administrative judge issued his initial decision, the agency had not yet issued its Decision on Notice of Proposed Removal to the appellant. ID at 1; PFR File, Tab 4 at 9. Therefore, at the time the initial decision was issued, the administrative judge was correct that the Board did not have jurisdiction over the appellant’s adverse action appeal. ¶7However, in its response to the Clerk’s Order, the agency states that the appellant’s removal has been effectuated. PFR File, Tab 4 at 4, 12. Because the removal has been effectuated, the appellant’s right to file an appeal has now vested. See Morales v. Social Security Administration , 108 M.S.P.R. 583, ¶ 7 (2008) (explaining that it is the Board’s practice to adjudicate an appeal that was premature when it was filed but becomes ripe while pending with the Board). Accordingly, the appeal should be remanded to the regional office for further adjudication. 3 ¶8The agency argues that the appellant has “ clearly evidenced an intent not to proceed,” and, as such, the Board should not continue to adjudicate the appeal. PFR File, Tab 4 at 5. We disagree. In the initial appeal, the appellant did file a request to withdraw her appeal, stating that her appeal was “ in [the] very initial stage.” IAF, Tab 4 at 3. However, the administrative judge did not grant her request to withdraw. ID at 3. Additionally, the appellant’s petition for review was filed after her request to withdraw and after her removal was effectuated, indicating that she intends to proceed. Finally, the Board will not treat her lack of response to the Clerk’s Order as a reason to deny the petition for review. Cf. Murdock v. Government Printing Office , 38 M.S.P.R. 297, 299 (1988) (explaining that a single instance of noncompliance with a Board order is insufficient to warrant a dismissal). ¶9We observe that the agency’s removal decision advised the appellant that she could appeal her removal directly to the Board, file a grievance, or file either an equal employment opportunity or Office of Special Counsel (OSC) complaint followed by a Board appeal. PFR File, Tab 4 at 12-13. For an election of forum to be binding, it must be knowing and informed. Kaszowski v. Department of the Air Force, 2023 MSPB 15, ¶ 5. At the time the appellant elected to file a Board appeal, she had not yet been issued the removal decision and was not apprised of the binding effect of filing a Board appeal before, for example, filing an OSC complaint. IAF, Tab 6 at 22-24. Therefore, on remand, the administrative judge should confirm that the appellant wishes to proceed with this Board appeal rather than in another forum.2 2 When confirming whether the appellant wishes to proceed with her Board appeal, the administrative judge should explain to the appellant that, if she withdraws her appeal to challenge the removal decision in another forum, it is possible that the other forum will consider the fact that the appellant filed a Board appeal first to have been a binding election of remedies under 5 U.S.C. § 7121. If so, the appellant’s challenge to the removal may not be heard on the merits, and she will not be able to have her Board appeal reinstated. See, e.g., Caracciola v. Office of Personnel Management , 86 M.S.P.R. 601, (2000) (stating that withdrawal of an appeal is an act of finality which removes the appeal from the Board's jurisdiction). 4 ORDER ¶10For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.5	Sinha_SangeetaPH-0752-23-0309-I-1_Remand_Order.pdf	2024-10-11	SANGEETA SINHA v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-0752-23-0309-I-1, October 11, 2024	PH-0752-23-0309-I-1	NP
426	https://www.mspb.gov/decisions/nonprecedential/Magee_Eric_M_CH-0752-23-0237-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ERIC M. MAGEE, Appellant, v. DEPARTMENT OF THE TREASURY, Agency.DOCKET NUMBER CH-0752-23-0237-I-1 DATE: October 11, 2024 THIS ORDER IS NONPRECEDENTIAL1 Eric M. Magee , Independence, Missouri, pro se. Russ Eisenstein , Esquire, Chicago, Illinois, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member REMAND ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed his removal appeal with prejudice due to failure to prosecute. For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the initial decision, and REMAND the appeal to the regional office for further adjudication in accordance with this Remand Order. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative 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). BACKGROUND ¶2Prior to his removal, the appellant was a GS-5 Tax Examining Technician in the Kansas City Submission Processing division of the agency’s Wage and Investment Service Center. Initial Appeal File (IAF), Tab 11 at 18, 51. On March 21, 2023, he filed a Board appeal challenging his removal. IAF, Tab 1 at 1. At all times during this appeal, he has represented himself. ¶3The administrative judge held a status conference on April 14, 2023, which both parties attended. IAF, Tab 6 at 1. At the conference, the appellant stated that he wished to pursue claims of sex discrimination and harmful procedural error Following the conference, the administrative judge issued an affirmative defenses order, which advised the appellant of his burdens of proof as to such claims and directed the appellant to respond if he planned to advance claims under Title VII or allege harmful procedural error. IAF, Tab 7. The appellant did not respond. ¶4On May 22, 2023, the agency moved to compel the appellant’s responses to its discovery requests, noting that he had attempted to respond, at least in part, but he had submitted most of his responses via cloud-based storage sites that the agency could not access. IAF, Tab 13 at 4-6, 26-36. The agency provided evidence that the appellant timely responded via email to 7 of the agency’s 23 interrogatories. Id. at 12-15, 27. On May 23, 2022, the administrative judge scheduled a status conference for the following day. IAF, Tab 14. Both parties again attended. IAF, Tab 15 at 1. At the conference, the appellant did not oppose the agency’s motion, but stated that the agency’s use of encryption had made it difficult for him to open its requests. Id. at 1-2. Later that same day, the administrative judge ordered the appellant to respond to the affirmative defenses order and the agency’s discovery requests and the administrative judge’s affirmative defenses order by June 2, 2023. Id. at 2. ¶5On June 5, 2023, the agency reminded the appellant that he was required to respond to its discovery and observed that he had not yet done so. IAF,2 Tab 16 at 8. Later that day, the appellant sent an email reiterating and attesting to his responses to seven interrogatories. IAF, Tab 13 at 27, Tab 16 at 9, 21. He also admitted or denied 19 of the agency’s 28 requests for admissions and attested to his responses. Id. at 5, 22-27. He objected to six requests for admissions without explaining the bases of his objections and neither objected nor provided responses to the remaining three requests. Id. ¶6The agency moved for the administrative judge to issue an order to show cause as to why the appellant failed to respond to the affirmative defense order at all, failed to respond to discovery by the June 2, 2023 due date, and failed to provide complete responses to discovery when he did respond on June 5, 2023. IAF, Tab 16 at 4-6. On the same day that the agency filed its motion, the appellant responded to the agency’s first 16 interrogatories. IAF, Tab 17 at 6. The administrative judge issued an order to show cause to the appellant as to why his appeal should not be dismissed for failure to prosecute. IAF, Tab 19. The appellant did not respond to the order to show cause despite the administrative judge’s warning that failure to respond would result in dismissal. Id. at 2. ¶7The administrative judge issued an initial decision dismissing the appeal for failure to prosecute, finding that dismissal was appropriate because the appellant “failed to comply with multiple discovery -related orders (including an order compelling discovery), repeatedly failed to respond to the Affirmative Defenses Order, and failed to respond to the Order to Show Cause.” IAF, Tab 22, Initial Decision (ID) at 4. He found that the appellant failed to exercise basic due diligence in complying with Board orders and in prosecuting his appeal. Id. ¶8The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has responded to the petition. PFR File, Tab 3. As discussed below, we find that the administrative judge abused his discretion by dismissing this appeal for failure to prosecute.3 DISCUSSION OF ARGUMENTS ON REVIEW ¶9The sanction of dismissal with prejudice may be imposed if a party fails to prosecute or defend an appeal. Turner v. U.S. Postal Service , 123 M.S.P.R. 640, ¶ 14 (2016), aff’d per curiam , 681 F. App’x 934 (Fed. Cir. 2017). The Board has held that the imposition of such a severe sanction must be used only when necessary to serve the ends of justice, as when a party has failed to exercise basic due diligence in complying with an order, or has exhibited negligence or bad faith in his efforts to comply. Id. The severe sanction of dismissal with prejudice for failure to prosecute an appeal should not be imposed when a pro se appellant has made incomplete responses to the Board’s orders but has not exhibited bad faith or evidenced any intent to abandon his appeal, and appears to be confused by Board procedures. Id. Nevertheless, absent a showing of abuse of discretion, the Board will not reverse an administrative judge’s determination regarding the imposition of sanctions, including the sanction of dismissal with prejudice. Id. ¶10The Board upheld the dismissal of an appeal based on an appellant’s failure to exercise due diligence when she made no attempt to respond to or comply with any of the administrative judge’s three orders, the last of which was an order to show cause. Williams v. U.S. Postal Service , 116 M.S.P.R. 377, ¶¶ 2-3, 10-12 (2011). On the other hand, the Board concluded that an administrative judge abused his discretion when he dismissed an appeal after an appellant attended only one of two status conferences, filed three duplicative but incomplete responses to an administrative judge’s affirmative defenses order, and did not respond to the agency’s discovery requests as ordered by the administrative judge. Wiggins v. Department of the Air Force , 113 M.S.P.R. 443, ¶¶ 3-5, 7, 12-13 (2010); see Tully v. Department of Justice , 95 M.S.P.R. 481, ¶¶ 2-3, 12 (2004) (vacating an initial decision dismissing an appeal for failure to prosecute because the sanction was too severe, although the pro se appellant had twice failed to file prehearing submissions and failed to appear at some of the administrative judge’s scheduled telephonic conferences). The Board4 acknowledged that the appellant was not diligent in pursuing his appeal. Wiggins, 113 M.S.P.R. 443, ¶ 12. Nonetheless, it found that dismissal did not serve the ends of justice because the appellant’s attendance at a telephonic status conference, his summary assertion of his affirmative defenses, and his three timely responses to the affirmative defenses order reflected that he did not intend to abandon his appeal and made good faith efforts in light of his pro se status. Id., ¶¶ 12, 14. ¶11As in Wiggins, we agree with the administrative judge that the appellant here has not been diligent in pursuing his appeal. ID at 4. He did not comply with the administrative judge’s affirmative defenses order or his order to show cause. Nonetheless, we find that, as in Wiggins, the appellant’s actions do not exhibit bad faith or evidence an intent to abandon his appeal. Here, the appellant’s partial and untimely responses to discovery and attempt to comply with the order to produce discovery responses reflect that he attempted to participate in this appeal. IAF, Tab 13 at 26-36, IAF, Tab 16 at 21-27. He was stymied to some extent by his lack of a computer and technological savvy. IAF, Tab 13 at 31, 36. Further, although lacking in detail, his objections and responses to the agency’s interrogatories and requests for production are consistent with the expectations the Board has for a pro se appellant, at least as an initial response. See 5 C.F.R. § 1201.73(c)(1) (providing that, prior to a party filing a motion to compel, the moving party must discuss the anticipated motion with the opposing party or nonparty, and both parties shall make a good faith effort to resolve the discovery dispute and narrow the areas of disagreement). The appellant also participated in two telephonic status conferences, including one that the administrative judge scheduled the day before it was held. IAF, Tab 16 at 8-9, Tab 17 at 6. ¶12Although the extreme sanction of dismissal is not appropriate in this instance, we acknowledge the administrative judge’s frustration and that he warned the appellant that failure to respond to the order to show cause would5 result in dismissal of the appeal. IAF, Tab 19 at 2; Williams, 116 M.S.P.R. 377, ¶ 10 (noting, in affirming an administrative judge’s dismissal of an appeal for failure to prosecute, that the administrative judge had warned the appellant that failure to respond to a show cause order could result in dismissal). On remand, the administrative judge is not required to permit the appellant to present evidence he failed to provide in response to the affirmative defenses order at an evidentiary hearing. See Simon v. Department of Commerce , 111 M.S.P.R. 381, ¶ 4, 10, 14 (2009). Further, the administrative judge may draw an inference in favor of the agency as to the information that the agency sought and that the appellant failed to provide. Id., ¶¶ 12, 14. In instituting sanctions, the administrative judge should consider whether the appellant’s responses and objections are reasonable given his pro se status. See Lancaster v. Office of Personnel Management , 112 M.S.P.R. 76, ¶ 14 (2009) (recognizing that pro se litigants are not expected to plead issues with the precision of attorneys). ¶13In remanding this appeal, we note that appellants are expected to comply with all orders issued by the Board’s administrative judges. See Lubert v. U.S. Postal Service, 110 M.S.P.R. 430, ¶ 15 (2009). Moreover, an administrative judge may impose various sanctions when a party fails to comply with an order. See 5 C.F.R. § 1201.43(a). Accordingly, on remand, the appellant must be more diligent in complying with the administrative judge’s orders and in pursuing his appeal to avoid the imposition of sanctions as necessary to serve the ends of justice.2 Lubert, 110 M.S.P.R. 430, ¶ 15; Tully, 95 M.S.P.R. 481, ¶ 14. 2 The appellant also argues on review the merits of the underlying removal action. PFR File, Tab 1 at 4-5. However, the merits of the underlying matter do not bear on the dispositive issue in this appeal, the dismissal of the appeal based on 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 the merits of the underlying agency action was not determinative of the propriety of a dismissal for failure to prosecute). The appellant may raise these arguments below, consistent with the administrative judge’s orders.6 ORDER ¶14For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Magee_Eric_M_CH-0752-23-0237-I-1_Remand_Order.pdf	2024-10-11	ERIC M. MAGEE v. DEPARTMENT OF THE TREASURY, MSPB Docket No. CH-0752-23-0237-I-1, October 11, 2024	CH-0752-23-0237-I-1	NP
427	https://www.mspb.gov/decisions/nonprecedential/Smith_Wanda_N_DC-0752-23-0276-I-3_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD WANDA NADEAN SMITH,1 Appellant, v. DEPARTMENT OF TRANSPORTATION, Agency.DOCKET NUMBER DC-0752-23-0276-I-3 DATE: October 11, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL2 Makeba Dukes-Gibbs , Washington, D.C., for the appellant. Nicholas Loren Johnson , Esquire, Washington, D.C., for the agency. Marquitta Robinson , Fort Worth, Texas, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member 1 At some point during the processing of her refiled appeal, the appellant amended her appeal profile and changed her last name from “Jordan” to “Smith.” Smith v. Department of Transportation , MSPB Docket No. DC-0752-23-0276-I-3, Appeal File, Tab 9 at 4 n.5. 2 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). FINAL ORDER ¶1The 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 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). ¶2On review, the appellant does not specifically address the administrative judge’s dismissal of her appeal for failure to prosecute, nor does she challenge the merits of her removal for medical inability.3 Petition for Review (PFR) File, 3 Although the appellant’s petition for review and supplemental documents were filed from the appellant’s e-Appeal account, it appears that the materials were provided by another individual who may have a kind of power of attorney. Petition for Review (PFR) File, Tab 1 at 4, Tab 3 at 4-5. That individual, however, expressly declined to be named as the designated representative, explaining that she and her staff were merely assisting the appellant in gathering the necessary documents. PFR File, Tab 10. Additionally, to date, neither the appellant nor her representative of record, Ms. Makeba Dukes-Gibbs, have responded. Smith v. Department of Transportation , MSPB Docket No. DC-0752-23-0276-I-1, Initial Appeal File, Tab 8. Nevertheless, the Board’s regulations assume that the registered e-filer electronically files a new appeal or pleading and views the case record. See 5 C.F.R. § 1201.14(e)(2). Thus, because the petition for review and supplemental documents were filed through the appellant’s e- Appeal account, we find that the appellant filed them.2 Tabs 1, 3-7. Instead, the appellant alleges that, because the agency delayed processing her disability retirement paperwork, she suffered extreme financial hardship and stress, which exacerbated her medical condition. PFR File, Tab 1 at 4, Tab 3 at 4-5. However, the Board is limited in its authority, and only has jurisdiction to review the appellant’s removal for medical inability, not the agency’s actions related to the processing of her disability retirement paperwork. See 5 U.S.C. § 7512 (setting forth actions covered); see also Maddox v. Merit Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985) (explaining that the Board’s jurisdiction is not plenary; it is limited to those matters over which it has been given jurisdiction by law, rule or regulation ). Furthermore, absent a showing of abuse of discretion, an administrative judge’s determination regarding sanctions will not be reversed. Gordon v. Department of the Air Force , 104 M.S.P.R. 358, ¶ 4 (2006). Because we find no evidence that the administrative judge abused his discretion in dismissing this appeal for failure to prosecute, we affirm the initial decision. NOTICE OF APPEAL RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following 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 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 5 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 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. 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Smith_Wanda_N_DC-0752-23-0276-I-3_Final_Order.pdf	2024-10-11	null	DC-0752-23-0276-I-3	NP
428	https://www.mspb.gov/decisions/nonprecedential/Graham-Battle_KarenAT-3443-21-0536-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD KAREN GRAHAM-BATTLE, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER AT-3443-21-0536-I-1 DATE: October 11, 2024 THIS ORDER IS NONPRECEDENTIAL1 Bonnie Hunt , Goose Creek, South Carolina, for the appellant. Joy Warner and Sophia E. Haynes , Esquire, Decatur, Georgia, for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman Henry J. Kerner , Member REMAND ORDER The appellant has filed 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 distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). REMAND the case to the Atlanta Regional Office for further adjudication in accordance with this Remand Order. BACKGROUND The appellant, a GS-9 Human Resources Specialist (Recruitment and Placement) with the agency, filed an appeal alleging that the agency gave her a negative performance evaluation rating resulting in her being denied a within-grade increase (WIGI) and failed to properly investigate her complaints of discrimination and harassment. Initial Appeal File (IAF), Tab 1 at 1, 15. She requested a hearing on her appeal. Id. at 2. The administrative judge issued an acknowledgement order advising the appellant that the Board may not have jurisdiction over her claim that the agency gave her a negative performance evaluation and set forth the limited circumstances where the Board may have jurisdiction over such a claim. IAF, Tab 2 at 2-3. Consequently, the administrative judge ordered the appellant to file evidence or argument to establish why her appeal should not be dismissed for lack of jurisdiction within 15 calendar days. Id. at 3-4. The appellant failed to timely file a response to the jurisdictional order, and the agency subsequently moved to dismiss the appeal on the basis that the Board lacked jurisdiction over the appeal. IAF, Tab 4 at 4-5. The appellant’s attorney thereafter filed a motion for an extension of time to file a jurisdictional response, IAF, Tab 5, and the jurisdictional response, Tab 6. In her jurisdictional response, the appellant argued that, because the negative performance evaluation directly led to her being denied a WIGI and the increase in pay that would accompany the WIGI, and because a denial of WIGI is an action appealable to the Board, the Board had jurisdiction over her appeal. IAF, Tab 6 at 4-5. She also restated her claim that her negative performance evaluation was the result of discrimination by her supervisor. Id. at 4-6.2 The administrative judge issued an initial decision based on the written record, dismissing the appeal for lack jurisdiction.2 IAF, Tab 7, Initial Decision (ID) at 1, 3. He first determined that the Board generally lacks jurisdiction to adjudicate the content of a performance evaluation, and the fact that the appellant’s negative performance evaluation was used to justify the WIGI denial did not convert the negative evaluation itself into an appealable action within the Board’s jurisdiction. ID at 3. The administrative judge further found that in order to directly challenge a WIGI denial to the Board the appellant must meet the requirements identified in 5 C.F.R. § 531.410(d), which included first seeking reconsideration of the WIGI denial with her employing agency, and it did not appear that the appellant had done so. ID at 3. Finally, the administrative judge concluded that the appellant had not identified any other argument that might bring her performance evaluation within the Board’s jurisdiction. ID at 3. Consequently, the administrative judge dismissed the appeal without holding the appellant’s requested hearing, concluding that she failed to meet her burden of making a nonfrivolous allegation of Board jurisdiction. ID at 3. The appellant filed a timely petition for review. Petition for Review (PFR) File, Tab 1. The agency filed a response in opposition to the petition for review, and the appellant has not filed a reply. PFR File, Tab 3. DISCUSSION OF ARGUMENTS ON REVIEW On review, the appellant restates her claims that the agency failed to properly investigate her complaints of discrimination and harassment, that the negative performance evaluation was the product of discrimination, and that the Board has jurisdiction over her claim that she was denied a WIGI. PFR File, Tab 1 at 4-6. She also provides copies of her 2020 annual performance evaluation and a July 29, 2020 performance counseling memo, both of which 2 In so doing, the administrative judge granted the appellant’s untimely motion for an extension of time to file the jurisdictional response and fully considered the jurisdictional response. IAF, Tab 7, Initial Decision (ID) at 2. 3 were included in the record below. Id. at 7-16; see IAF, Tab 6 at 7-16. Additionally, she provides a copy of a memo dated March 17, 2021, notifying her of the denial of her WIGI based on her “unacceptable” performance rating for the 2020 performance year. PFR File, Tab 1 at 17-18. The memo informs the appellant of her right to request reconsideration of the denial to the Chief Human Resources Officer within 15 calendar days of receipt of the notice. Id. at 17. Finally, she provides a copy of a letter addressed to the Chief Human Resources Officer dated March 25, 2021, requesting reconsideration of the WIGI denial decision. Id. at 19. We remand this appeal for a new determination as to whether the appellant established jurisdiction over her appeal challenging her denial of a WIGI. A permanent employee on the General Schedule who is paid at less than the maximum rate of the grade of her position is entitled to a WIGI if her performance is at an acceptable level of competence, she has completed the required waiting period, and she has not received an equivalent increase in pay from any cause during that period. 5 U.S.C. § 5335(a); 5 C.F.R. § 531.404; Oulianova v. Pension Benefit Guaranty Corporation , 120 M.S.P.R. 22, ¶ 6 (2013). If an agency determines that an employee is not performing at an acceptable level of competence and withholds a WIGI, the employee is entitled to “an opportunity for reconsideration . . . within [her] agency under uniform procedures prescribed by the Office of Personnel Management.” 5 U.S.C. § 5335(c). If the determination to withhold the WIGI is affirmed on reconsideration, the employee is entitled to appeal the denial to the Board. Id. Accordingly, the Board can exercise jurisdiction over the agency’s withholding of an appellant’s WIGI only if the agency affirmed its initial decision on reconsideration or has unreasonably refused to act on a request for reconsideration. Hunt v. Department of Veterans Affairs , 88 M.S.P.R. 365, ¶¶ 6, 7 n.1 (2001), overruled on other grounds by Brookins v. Department of the Interior, 2023 MSPB 3; Priselac v. Department of the Navy , 77 M.S.P.R. 332,4 335 (1998). Pursuant to 5 C.F.R. § 531.410(a)(1), an employee must seek reconsideration of a denial of a WIGI in writing within 15 days of receiving the decision. The Board lacks jurisdiction over an appeal of the denial of a WIGI where the appellant failed to timely seek reconsideration of the denial by the agency in accordance with the agency’s requirements. See Goines v. Merit Systems Protection Board , 258 F.3d 1289, 1292 (Fed. Cir. 2001); see also Priselac, 77 M.S.P.R. at 335. Finally, in a Board appeal under 5 U.S.C. § 5335, the agency bears the burden of proof, and its WIGI denial may be sustained only if it is supported by substantial evidence.3 5 C.F.R. § 1201.56(b)(1)(i). Additionally, an appellant must receive explicit information on what is required to establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection Board , 758 F.2d 641, 643 44 (Fed. Cir. 1985). This includes not only advising an appellant of her burden of proof, but also explaining how she can show that she satisfied that burden. Mason v. Department of Homeland Security , 116 M.S.P.R. 135, ¶ 9 (2011). Thus, in the instant case the appellant should have received explicit information as to how to establish jurisdiction over her claim that she was improperly denied a WIGI. Although the appellant identified that she had been denied a WIGI in her initial appeal and jurisdictional response, see IAF, Tab 1 at 15; Tab 6 at 4, the administrative judge failed to provide adequate notice regarding the jurisdictional elements of an appeal of a WIGI denial in the acknowledgment order, and did not issue a show cause order or an order on jurisdiction identifying the jurisdictional elements for this claim, see IAF, Tab 2. An administrative judge’s failure to provide an appellant with proper Burgess notice can be cured if the agency’s pleadings contain the notice that was lacking in the order, or if the initial decision itself puts the appellant on notice of what she must do to establish jurisdiction, thus affording her the opportunity to 3 Substantial evidence is defined as “[t]he degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree.” 5 C.F.R. § 1201.4(p). It is a lower standard of proof than preponderant evidence. Id.5 meet her jurisdictional burden in the petition for review. Mapstone v. Department of the Interior, 106 M.S.P.R. 691, ¶ 9 (2007), modified on other grounds by Mapstone v. Department of the Interior , 110 M.S.P.R. 122, ¶ 7 (2008). Here, the agency’s submission also did not set out the appellant’s jurisdiction burden for her WIGI denial claim. IAF, Tab 4. In the initial decision, the administrative judge provided some information regarding the appellant’s jurisdictional burden for her WIGI denial claim, noting that the appellant “must file an appeal concerning the WIGI denial in accordance with the requirements of 5 CFR § 531.410(d),” which includes the requirement that she “first seek[] reconsideration of the WIGI denial from the appellant’s employing agency,” and concluded that the appellant failed to do so. ID at 3. However, this notice was still insufficient. It did not explicitly inform the appellant that she was required to show that she had sought reconsideration of the agency’s WIGI denial within 15 days of the agency’s initial determination, nor did the decision explain that the Board may exercise jurisdiction over the agency’s withholding of a WIGI where the agency unreasonably refused to act on a request for reconsideration. Hunt, 88 M.S.P.R. 365, ¶ 6; Priselac, 77 M.S.P.R. at 335. Consequently, the appellant was not on notice of what was required of her to establish Board jurisdiction over her claim that she was improperly denied a WIGI. See Burgess, 758 F.2d at 643-44. With her petition for review, the appellant has now provided some evidence indicating that she timely requested reconsideration of the agency’s decision to withhold a WIGI. PFR File, Tab 1 at 17-19. Both of the relevant documents are dated prior to the date the initial decision was issued in this case, and thus would not ordinarily qualify as new evidence. See id.; ID at 1; Okello v. Office of Personnel Management , 112 M.S.P.R. 563, ¶ 10 (2009) (noting that under 5 C.F.R. § 1201.115(d), the Board generally will not consider evidence submitted for the first time with a petition for review absent a showing that it is both new and material). Nevertheless, because the issue of jurisdiction is always before the6 Board and may be raised at any time and the appellant was not put on notice below of all of the requirements to establish jurisdiction over an appeal of a WIGI denial, we have considered the two documents. Stoglin v. Department of the Air Force, 123 M.S.P.R. 163, ¶ 7 (2015), aff’d, 640 F. App’x 864 (Fed. Cir. 2016). Based on the March 17, 2021 memo notifying the appellant of the denial of her WIGI based on her “unacceptable” performance rating for the 2020 performance year and the March 25, 2017 letter addressed to the Chief Human Resources Officer in which she requested reconsideration of that WIGI denial, we find that the appellant made a timely reconsideration request. What remains unclear, however, is whether the agency affirmed its decision denying the appellant a WIGI on reconsideration, and if so, when it issued any reconsideration decision, and whether the appellant’s Board appeal is timely. See 5 U.S.C. § 5335(c); Goines, 258 F.3d at 1292; 5 C.F.R. §§ 531.410(d), 1201.3(a)(8). Accordingly, we remand this appeal so that the administrative judge can provide the requisite Burgess notice to the appellant regarding her WIGI denial claim. After providing such notice, the administrative judge should permit the parties to supplement the record regarding the issue of Board jurisdiction over the appellant’s WIGI denial claim, as well as the timeliness of her appeal, and should issue a new jurisdictional determination.4 4 If the administrative judge determines that the appellant met her burden of proving Board jurisdiction over her appeal challenging her WIGI denial, he should consider the appellant’s allegation that the WIGI denial was based on discrimination in the context of analyzing that claim. See 5 U.S.C. § 7701(c)(2)(b) (noting that the Board will reverse an adverse action if it is based on a prohibited personnel practice, including unlawful discrimination).7 ORDER For the reasons discussed above, we REMAND this case to the Atlanta Regional Office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Graham-Battle_KarenAT-3443-21-0536-I-1_Remand_Order.pdf	2024-10-11	null	AT-3443-21-0536-I-1	NP
429	https://www.mspb.gov/decisions/nonprecedential/Baumgardner_James_E_AT-0752-23-0151-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JAMES E. BAUMGARDNER, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER AT-0752-23-0151-I-1 DATE: October 11, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 James E. Baumgardner , Macon, Georgia, pro se. Kimberly Kaye Ward , Decatur, Georgia, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed for lack of jurisdiction his appeal of the agency’s denial of his administrative tort claim pursuant to the Federal Tort Claims Act. On petition for review,2 the appellant reiterates that he seeks monetary damages for the pain and suffering caused by the negligence and wrongful acts of his supervisors and 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). agency management. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit 2 After the record closed on review, the appellant filed two pleadings. The Acting Clerk of the Board rejected one of these pleadings, and we decline to address it further. Petition for Review (PFR) File, Tab 6. The other pleading was the reply to the agency’s response to the petition for review. PFR File, Tab 5. The Board’s regulations provide 10 days to file a reply after the date of service of the agency’s response. 5 C.F.R. § 1201.114(e). The Acting Clerk of the Board advised the appellant of this deadline. PFR File, Tab 2 at 1. However, the appellant did not timely file his reply. Nor did he accompany his reply with a motion showing good cause for the untimely filing. We see no reason to determine good cause based on the existing record. See 5 C.F.R. § 1201.114(g). Accordingly, we have not considered the appellant’s reply. 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.2 Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case, and 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 the4 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 President on July 7, 2018, permanently allows appellants to file petitions for judicial review of5 review within 60 days of the date of issuance of this decision. 5 U.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. MSPB decisions 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 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Baumgardner_James_E_AT-0752-23-0151-I-1_Final_Order.pdf	2024-10-11	JAMES E. BAUMGARDNER v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-23-0151-I-1, October 11, 2024	AT-0752-23-0151-I-1	NP
430	https://www.mspb.gov/decisions/nonprecedential/Davis_Chandi_M_AT-315H-23-0463-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CHANDI MISTY DAVIS, Appellant, v. DEPARTMENT OF THE TREASURY, Agency.DOCKET NUMBER AT-315H-23-0463-I-1 DATE: October 10, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Chandi Misty Davis , Decatur, Georgia, pro se. Sundrea Richardson , Atlanta, Georgia, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed her appeal of her probationary termination for lack of jurisdiction. On petition for review, the appellant argues that she did not receive notification of the administrative judge’s acknowledgement order instructing her to file evidence 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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). or argument to establish a nonfrivolous allegation of jurisdiction.2 Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of 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 Board’s e-filer regulations provide that, as a registered e-filer, the appellant agreed to accept documents through electronic service and, further, that she was required to monitor her case activity at e-Appeal to ensure that she received all case-related documents. 5 C.F.R. § 1201.14(e)(1), (j)(3) (2023); Rivera v. Social Security Administration, 111 M.S.P.R. 581, ¶ 5 (2009). All pleadings, including the order and initial decision, were served on the appellant in the manner set forth in the Board’s regulations for such service. Initial Appeal File (IAF), Tabs 2, 5, 6; 5 C.F.R. § 1201.14(j) (2023). Further, in her petition for review, the appellant argues that she received a letter from the Board through e-Appeal, stating that she “was waiting on a response from the agency.” Petition for Review File, Tab 1 at 3. While the acknowledgement order served the appeal on the agency and directed it to respond, it also directed the appellant to file evidence or argument to establish why her appeal should not be dismissed for lack of a nonfrivolous allegation of jurisdiction. IAF, Tab 2 at 5, 10. The acknowledgement order was the only document issued by the Board prior to the Initial Decision and thus must be the document to which the appellant refers. As noted, it directed the appellant to respond. 2 NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case, and 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 any4 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s5 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of 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 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ____________________________ __ Gina K. Grippando Clerk of the Board Washington, D.C.7	Davis_Chandi_M_AT-315H-23-0463-I-1_Final_Order.pdf	2024-10-10	CHANDI MISTY DAVIS v. DEPARTMENT OF THE TREASURY, MSPB Docket No. AT-315H-23-0463-I-1, October 10, 2024	AT-315H-23-0463-I-1	NP
431	https://www.mspb.gov/decisions/nonprecedential/Nathan_RobertPH-0432-20-0238-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ROBERT NATHAN, Appellant, v. DEPARTMENT OF THE TREASURY, Agency.DOCKET NUMBER PH-0432-20-0238-I-1 DATE: October 10, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Robert Nathan , Levittown, Pennsylvania, pro se. Jael Dumornay , Esquire, New York, New York, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his appeal as a sanction for contumacious conduct and failure to comply with Board orders. 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 distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 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). 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. This authority covers, but is not limited to, situations in which a party fails to comply with a Board order, fails to prosecute or defend an appeal, fails to make a timely filing, and/or engages in contumacious conduct or conduct prejudicial to the administration of justice. Id.; MSPB Judges’ Handbook, ch. 10, § 11. The sanction of dismissal with prejudice is severe, and as such, should be imposed only when: (1) a party has failed to exercise due diligence in complying with Board orders; or (2) a party has exhibited negligence or bad faith in its efforts to comply. Morris v. Department of the Navy , 123 M.S.P.R. 662, ¶ 12 (2016). Dismissal is not an appropriate sanction for a single instance of failure to comply with a Board order. Davis v. Department of Commerce , 120 M.S.P.R. 34, ¶ 7 (2013) (citing Williamson v. Merit Systems Protection Board , 334 F.3d 1058, 1063 (Fed. Cir. 2003)). However, when a party continually refuses to comply with Board orders and acts in bad faith to impede an administrative judge’s ability to orderly and efficiently adjudicate an appeal, dismissal of the appeal is warranted. Id., ¶ 18. Absent a showing of abuse of discretion, the Board will not reverse an administrative judge’s imposition of sanctions. Id. 2 Contrary to what the appellant suggests on review, the administrative judge did not himself file a motion to dismiss, and there was no need to refer the matter to another adjudicator to avoid a conflict of interest. To the contrary, it was within the administrative judge’s own discretion to impose the sanction. 5 C.F.R. § 1201.43. Furthermore, as required under the Board’s regulations, the administrative judge provided appropriate prior warning, allowed a response to the proposed sanction, and documented the reasons for the sanction. See id. The administrative judge also complied with the Board’s record-keeping requirements by preparing a written summary of the September 17, 2020 prehearing conference. See MSPB Judges’ Handbook, ch. 9, § 5.2 We agree with the administrative judge that the appellant acted in bad faith by repeatedly refusing to answer straightforward questions that were necessary for further adjudication of the appeal. The appellant’s mere disagreement with that finding does not warrant further review. 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); Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359 (1987) (same). To the extent the appellant claims that the administrative judge was biased, he has not overcome the presumption of honesty and integrity that accompanies administrative adjudicators. See Oliver v. Department of Transportation , 1 M.S.P.R. 382, 386 (1980). In sum, we discern no abuse of discretion in the administrative judge’s decision to impose the sanction of dismissal. Given the dismissal of the appeal, the appellant’s objections to the evidentiary sanction imposed on July 14, 2020, are moot. Accordingly, we find no basis for further review. 2 The appellant mistakenly cites chapter 10, section 6 of the MSPB Judges’ Handbook, which concerns the recording of hearings. 3 NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish 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). 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case, and 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 on5 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or6 other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Nathan_RobertPH-0432-20-0238-I-1_Final_Order.pdf	2024-10-10	ROBERT NATHAN v. DEPARTMENT OF THE TREASURY, MSPB Docket No. PH-0432-20-0238-I-1, October 10, 2024	PH-0432-20-0238-I-1	NP
432	https://www.mspb.gov/decisions/nonprecedential/Knight_Thaddeus_A_AT-0353-23-0128-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD THADDEUS A. KNIGHT, Appellant, v. DEPARTMENT OF JUSTICE, Agency.DOCKET NUMBER AT-0353-23-0128-I-1 DATE: October 10, 2024 THIS ORDER IS NONPRECEDENTIAL1 Jennifer Duke Isaacs , Atlanta, Georgia, for the appellant. Angela D. Gerrits , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member REMAND ORDER The appellant has filed a petition for review of the initial decision, which dismissed his restoration appeal for lack of jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the initial decision, and find that the Board has jurisdiction over the restoration appeal. We REMAND the appeal for the administrative judge to adjudicate 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). election of remedies issue and, depending on the outcome of that issue, to adjudicate the merits of the restoration appeal. BACKGROUND The appellant joined the Federal Bureau of Investigation (FBI) as a Special Agent in 1997. Initial Appeal File (IAF), Tab 10 at 5. He was in a car accident while on duty in 2001, he suffered numerous injuries, and his claim for a traumatic work-related injury was accepted by the Office of Workers’ Compensation Programs (OWCP). Id. at 5, 16. The appellant last worked at the agency on November 11, 2002. Id. at 16. The record reflects that the appellant resigned on December 4, 2012. Id. at 21. The appellant requested reemployment at some point prior to November 15, 2021. IAF, Tab 1 at 26. In December 2021, the agency made a conditional offer of a GS-11 step 10 Administrative Specialist position, which OWCP found was a suitable position, and the appellant accepted the offer “under protest and duress.” IAF, Tab 1 at 20, 26, Tab 10 at 7. The appellant was required to undergo an FBI background investigation, including a polygraph examination, but he did not pass the polygraph examination. IAF, Tab 7 at 18-20, 26, Tab 10 at 7, 22-23. Because of his failure to pass the polygraph examination, he was informed that he was ineligible for employment at the FBI. IAF, Tab 1 at 25, Tab 10 at 7. On October 5, 2022, OWCP informed the appellant that the agency was unable to place him as an Administrative Specialist because he was “unable to pass a background check.” IAF, Tab 10 at 23. A few days later, the appellant followed up with the agency and requested that it complete his background investigation. Id. at 22. On December 16, 2022, the appellant received a response, informing him that he had been “found ineligible for employment with the FBI on 4/8/22.” Id. at 24-26. The appellant filed a Board appeal on December 19, 2022, alleging that the agency violated his restoration rights. IAF, Tab 1. The administrative judge2 dismissed the appeal for lack of jurisdiction. IAF, Tab 14, Initial Decision (ID) at 1. The administrative judge noted that the parties did not dispute that the appellant was absent from his position due to a compensable injury, that he recovered sufficiently to return to work, and that he had not been returned to work. ID at 5. She also noted that the outstanding issue was whether the appellant made a nonfrivolous allegation that the agency’s denial of restoration was arbitrary and capricious. Id. The administrative judge found that the agency’s failure to provide the appellant with an opportunity to rebut the findings regarding the failed polygraph examination did not constitute a nonfrivolous allegation that the denial of restoration was arbitrary and capricious. Id. In pertinent part, she noted that the agency searched in the local jurisdiction for available work, found a position for the appellant, and offered it to him. Id. She also noted that the polygraph examination results were a separate matter that went beyond the agency’s restoration obligations, and the Board lacks the authority to review the substance of the agency’s underlying security clearance determination. ID at 6 (citing Department of the Navy v. Egan , 484 U.S. 518, 530-31 (1988)). The administrative judge ultimately concluded that the agency met its restoration obligations when it offered the appellant the position, and he did not make a nonfrivolous allegation that the denial of restoration was arbitrary and capricious. Id. Finally, the administrative judge noted that the appellant argued that the position offered to him was an “effective denial of restoration,” but she stated that she need not address this argument because the failed polygraph “rendered him ineligible to be employed by the FBI in any capacity.” ID at 5 n.2. The appellant has filed a petition for review, and the agency has filed a response. Petition for Review (PFR) File, Tabs 1, 3. 3 DISCUSSION OF ARGUMENTS ON REVIEW The appellant has established Board jurisdiction over his restoration appeal. 2 To establish jurisdiction over a restoration appeal, a partially recovered individual must make nonfrivolous allegations3 of the following: (1) he was absent from the position due to a compensable injury; (2) he recovered sufficiently to return to duty on a part-time basis or to return to work in a position with less demanding physical requirements than those previously required; (3) the agency denied his request for restoration; and (4) the denial was arbitrary and capricious. Cronin v. U.S. Postal Service , 2022 MSPB 13, ¶ 12. As noted above, the administrative judge found that the parties did not dispute that the appellant was absent from his position due to a compensable injury, he recovered sufficiently to return to work, and he has not been returned to work.4 ID at 5. The record does not support this finding. Rather, the agency argued before the administrative judge that the appellant did not satisfy the first three elements of his jurisdictional burden. IAF, Tab 7 at 10-11, Tab 13 at 9-11. 2 Before the administrative judge, the agency argued that the appeal was untimely filed. IAF, Tab 7 at 7-8. The administrative judge did not address this issue in the initial decision. We have reviewed, among other evidence, the agency’s April 11, 2022 and December 13, 2022 correspondence with the appellant. IAF, Tab 7 at 15, Tab 10 at 24-26. In the absence of any final decision to deny restoration and trigger the Board’s regulatory filing period, we find that the appeal was timely filed as measured from the agency’s December 13, 2022 letter. Alternatively, even if the appeal was untimely filed, we find that there was good cause to waive the filing deadline. Importantly, none of the correspondence to the appellant was clear that the denial of restoration was final, and none of the documentation contained a notice of Board appeal rights. 3 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s). An allegation generally will be considered nonfrivolous when, under oath or penalty of perjury, an individual makes an allegation that is more than conclusory, is plausible on its face, and is material to the legal issues in the appeal. Id. 4 Although the administrative judge stated that the parties did not dispute that the appellant has not returned to work, we believe—consistent with the elements of the appellant’s jurisdictional burden—that she meant to say that the parties did not dispute that the agency denied his restoration request. 4 The agency did not file a cross petition for review. However, in its response to the petition for review, the agency directs the Board to its motion to dismiss and reply brief, it argues that the appeal should be dismissed because, among other things, the appellant “failed to establish that he was separated from the position due to a compensable injury or that he was recovered and able to return to duty,” and it suggests that its offer of the Administrative Specialist position was not a denial of restoration. PFR File, Tab 3 at 10 & n.2 (citing IAF, Tabs 7, 13). Even if we consider these arguments, a different outcome is not warranted. Regarding the first jurisdictional element, the agency asserted that the appellant failed to prove that the recission of his conditional job offer was in any way tied to his compensable injury but, rather, was due to his failure to obtain a security clearance. IAF, Tab 7 at 10-11. This argument is not persuasive because the position in question is the Special Agent position that the appellant once held, not the Administrative Specialist position that he never held. Regarding the second jurisdictional element, the agency asserted that the appellant did not show that he was rated as a partially recovered employee by OWCP. Id. at 11. We disagree. Notably, the appellant asserted in his equal employment opportunity (EEO) complaint that “OWCP has determined that [he is] a partially recovered employee,” and OWCP determined that the “FBI job offer [was] suitable.” IAF, Tab 1 at 26, Tab 7 at 26-27. These statements satisfy the appellant’s burden to make a nonfrivolous allegation regarding the second jurisdictional element. 5 C.F.R. § 1201.4(s). Regarding the third jurisdictional element, we find that the agency’s decision to make and rescind a conditional offer for a position for which the appellant was not qualified constitutes a nonfrivolous allegation of a denial of restoration. Having determined that the appellant made nonfrivolous allegations to satisfy the first three jurisdictional elements, t he remaining issue before us is whether the appellant nonfrivolously alleged that the agency’s denial of his restoration request was arbitrary and capricious. 5 The Board has held that a denial of restoration is arbitrary and capricious if the agency fails to meet its obligations under 5 C.F.R. § 353.301(d), i.e., to search within the local commuting area for vacant positions to which it can restore a partially recovered employee and to consider him for such vacancies. Cronin, 2022 MSPB 13, ¶¶ 14, 20. A determination on whether an agency met its obligations under section 353.301(d) will turn on whether it “ma[d]e every effort” to restore a partially recovered employee “in the local commuting area” and “according to the circumstances in each case.” Id., ¶ 21 (quoting 5 C.F.R. § 353.301(d)). The administrative judge found that, although OWCP identified the Administrative Specialist position as suitable for the appellant, the agency did not act arbitrarily and capriciously in rescinding its job offer because the appellant was unable to obtain the required security clearance. ID at 5-6. The administrative judge also found that, because the appellant failed the polygraph examination, he was “ineligible to be employed by the agency in any capacity.” ID at 5 n.2. We disagree with the administrative judge’s analysis of the fourth jurisdictional element. Pursuant to 5 C.F.R. § 353.102(1), the term “agency” in this context means “any department, independent establishment, agency, or corporation in the executive branch.” The Department of Justice (DOJ) is the agency in this case, not the FBI. See 5 U.S.C. §§ 101-105; see Farrell v. Department of Justice , 50 M.S.P.R. 504, 510, 512 (1991) (finding that the entire Department of Justice was the “agency” with the obligation to restore a partially recovered former employee of the U.S. Marshals Service), overruled on other grounds by Leach v. Department of Commerce , 61 M.S.P.R. 8, 13 (1994). Although employment in the FBI in any capacity may require a security clearance, there are DOJ positions outside of the FBI that do not have a security clearance requirement. The agency has offered no justification for limiting its search to FBI positions. Accordingly, we find that the appellant has made a6 nonfrivolous allegation that the agency failed to satisfy its obligations under 5 C.F.R. § 353.301(d) and that the agency’s denial of restoration was arbitrary and capricious. See Cronin, 2022 MSPB 13, ¶¶ 14, 20. We therefore find that the appellant has established jurisdiction. We remand the appeal for the administrative judge to evaluate the election of remedies issue. Our resolution of the jurisdictional issue, discussed above, does not resolve all outstanding issues presented in this matter. For example, the record reflects that the appellant filed his formal complaint of discrimination on December 14, 2022, five days before he filed his Board appeal. IAF, Tab 7 at 22-23. This complaint involved allegations that the appellant’s restoration rights were violated when he was found ineligible for employment and his conditional offer was rescinded based on the failed polygraph examination. Id. The appellant also asserted that the agency’s action was based on age and disability discrimination. Id. The agency argued below that the Board appeal should be dismissed because he filed his discrimination complaint first. Id. at 11-12. The administrative judge did not discuss this issue in the initial decision. We do so now. When an appellant has been subjected to an action that is appealable to the Board and alleges that the action was effected, in whole or in part, because of discrimination on the basis of race, color, religion, sex, national origin, handicap, or age, he may initially file a mixed-case complaint with his employing agency, or a mixed-case appeal with the Board, but not both, and whichever is filed first is deemed to be an election to proceed in that forum. McCoy v. U.S. Postal Service, 108 M.S.P.R. 160, ¶ 12 (2008); 29 C.F.R. § 1614.302(b); see also Desjardin v. U.S. Postal Service , 2023 MSPB 6, ¶ 24 (stating that any restoration appeal within the Board’s jurisdiction in which disability discrimination is claimed is, by definition, a mixed-case appeal under 29 C.F.R. § 1614.302(a)(2)). An election is not valid unless the agency has properly informed the appellant of7 the election requirement and its consequences. Moore v. Department of Justice , 112 M.S.P.R. 382, ¶ 12 (2009); 29 C.F.R. § 1614.302(b). Once an appellant makes an informed election to proceed through the agency’s EEO process, he is bound to exhaust that process prior to filing a Board appeal. Checketts v. Department of the Treasury , 91 M.S.P.R. 89, ¶ 5 (2002), aff’d, 50 F. App’x 979 (Fed. Cir. 2002) . The record does not contain any documentation to show that the appellant received a formal decision letter with the election of remedies notice required under 5 C.F.R. § 1201.21 and 29 C.F.R. § 1614.302(b). Therefore, we remand the appeal so that the parties can present evidence and argument in this regard and the administrative judge can decide whether the appellant’s election to file a formal EEO complaint was knowing and informed. If the administrative judge determines that the appellant’s decision to file an EEO complaint was not knowing and informed, then it was not valid, and the appellant should have an opportunity on remand to choose between his EEO complaint and his Board appeal. Depending on the outcome of these issues, the administrative judge shall proceed to adjudicate the merits of the appellant’s restoration appeal. ORDER For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Knight_Thaddeus_A_AT-0353-23-0128-I-1_Remand_Order.pdf	2024-10-10	THADDEUS A. KNIGHT v. DEPARTMENT OF JUSTICE, MSPB Docket No. AT-0353-23-0128-I-1, October 10, 2024	AT-0353-23-0128-I-1	NP
433	https://www.mspb.gov/decisions/nonprecedential/Galasso_DanielNY-0752-20-0104-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DANIEL GALASSO, Appellant, v. DEPARTMENT OF JUSTICE, Agency.DOCKET NUMBER NY-0752-20-0104-I-1 DATE: October 10, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Daniel Galasso , New York, New York, pro se. Harvey Smith and Steve Roque , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which sustained the agency’s imposition of a 40 -day suspension for sustained charges of conduct unbecoming a Deputy U.S. Marshall (DUSM) and misuse of a Government-owned vehicle (GOV). On review, the appellant disputes the reasonableness of the penalty because the agency “failed to provide [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). administrative judge] with adequate cases to assess the consistency of the penalty.” Petition for Review (PFR) 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 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 are unpersuaded by the appellant’s assertion that the administrative judge was unable to assess the consistency of the penalty. The agency produced a sworn statement from the deciding official, which identified three comparator cases. Initial Appeal File (IAF), Tab 15 at 28-29. The appellant does not assert on review that the deciding official was untruthful in her sworn statement, nor does he provide any evidence that would suggest the deciding official omitted relevant information from her statement. PFR, Tab 1 at 3-5. Furthermore, an agency need only consider whether the penalty was consistent with those imposed on others for similar misconduct; there is no requirement that a comparator even exist, let alone a certain number of comparators exist, for the agency to impose discipline. See Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 18 (explaining that the consistency of the penalty with those imposed upon other employees for the same or similar offenses is simply one of a nonexhaustive list of 12 factors2 that are relevant for consideration in determining the appropriateness of a penalty); Voss v. U.S. Postal Service , 119 M.S.P.R. 324, ¶ 6 (2013) (explaining that the consistency of the penalty will be considered as a factor as to whether the penalty is reasonable); Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305 (1981) (defining the relevant factor as consistency of the penalty with those imposed upon other employees for the same or similar offenses, not proscribing a requirement for comparators to be produced). Based on the record, we can discern no reason to disturb the administrative judge’s findings. Although we do not discern any reason to disturb the initial decision, we do believe a supplement to the administrative judge’s analysis on the issue of nexus is warranted because the appellant’s conduct occurred while he was off -duty. IAF, Tab 22, Initial Decision (ID) at 8. The relevant facts of this case are not in dispute. The appellant, a law enforcement officer, suspected his wife of having an extramarital affair, and, after finding the suspected lover’s address on the internet, he drove his GOV to the paramour’s house and sat outside for approximately 20 minutes. IAF, Tab 6 at 54-56. When the appellant returned home, he and his wife got into a heated argument, which escalated to him threatening to kill her and grabbing her neck and pushing her backwards while she sat on the couch. IAF, Tab 4 at 26-27, 69-78, Tab 6 at 49-54. The appellant then left his house and drove his GOV to his aunt’s house. IAF, Tab 4 at 27-28, Tab 6 at 41. The appellant was subsequently arrested by local police at a hotel for simple assault and making terroristic threats.2 IAF, Tab 5 at 32. An agency must prove that a nexus exists between the sustained charges of misconduct and either the employee’s ability to accomplish his duties satisfactorily or some other legitimate government interest, i.e., the efficiency of the service. Campbell v. Department of the Army , 123 M.S.P.R. 674, ¶ 24 (2016). 2 The appellant’s criminal case was held in abeyance and ultimately expunged from his record pursuant to an agreement with the local prosecutor that allowed for the case to be dismissed as long as the appellant adhered to several conditions. IAF, Tab 5 at 30, 66, 69.3 The Board generally recognizes three independent means by which an agency may show a nexus linking an employee’s off-duty misconduct with the efficiency of the service: (1) a rebuttable presumption of nexus that may arise in “certain egregious circumstances” based on the nature and gravity of the misconduct; (2) a showing by preponderant evidence that the misconduct affects the employee’s or his co-workers job performance or management’s trust and confidence in the employee’s job performance; and (3) a showing by preponderant evidence that the misconduct interfered with or adversely affected the agency’s mission. Kruger v. Department of Justice , 32 M.S.P.R. 71, 74 (1987). The Board has consistently found that there is nexus between off -duty criminal conduct by law enforcement officials and the efficiency of the service. See Royster v. Department of Justice , 58 M.S.P.R. 495, 499-500, (1993) (finding nexus between the appellant’s off-duty conduct and the efficiency of the service when the appellant was a Corrections Officer found to have made several threatening and abusive phone calls to women); Mojica-Otero v. Department of the Treasury, 30 M.S.P.R. 46, 50 (1986) (finding nexus existed between off-duty shoplifting by a customs officer and the efficiency of the service because of his position as a law enforcement officer); Barnhill v. Department of Justice , 10 M.S.P.R. 378, 380 -81 (1982) (finding nexus existed between the appellant’s off-duty criminal conduct and the efficiency of the service when the appellant was a Border Patrol Agent criminally charged with making obscene phone calls to women). The Board explained that law enforcement officers have the “general duty and responsibility to uphold and enforce the law, not break it.” Austin v. Department of Justice , 11 M.S.P.R. 255, 259 (1982). With such a sensitive position, “it can hardly be challenged that an agency has the right to expect and hold its law enforcement personnel to a high standard of conduct.” Id. Thus, when law enforcement officers engage in criminal conduct, even if off -duty, it is a “serious breach of conduct and . . . [has] a significant effect on [the officer’s]4 reputation for honesty and integrity, thereby a significant effect upon the efficiency of the service.” Id. Consistent with previous Board findings, we find that the appellant’s off-duty threatening and abusive misconduct is antithetical to the appellant’s role as a law enforcement officer, and therefore has a significant impact on the efficiency of the service. Accordingly, we agree with the administrative judge’s conclusion that the agency established that nexus existed between the appellant’s off-duty misconduct and the efficiency of the service. ID at 8. NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the 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 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.5 Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case,6 and 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. 7 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 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/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.9	Galasso_DanielNY-0752-20-0104-I-1_Final_Order.pdf	2024-10-10	DANIEL GALASSO v. DEPARTMENT OF JUSTICE, MSPB Docket No. NY-0752-20-0104-I-1, October 10, 2024	NY-0752-20-0104-I-1	NP
434	https://www.mspb.gov/decisions/nonprecedential/Crockett_JohnDA-0752-18-0221-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JOHN CROCKETT, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER DA-0752-18-0221-I-1 DATE: October 10, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Alfonso Kennard, Jr. , Esquire, Houston, Texas, for the appellant. Thomas J. Herpin , Esquire, Houston, Texas, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member* *Member Kerner did not participate in the adjudication of this appeal. FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his alleged involuntary resignation appeal for lack of jurisdiction. On petition for review, the appellant challenges the reasons for the dismissal of his appeal on jurisdictional grounds. Generally, we grant petitions such as this one 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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). only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision.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 represent a statement of how courts will rule regarding which cases fall within their 2 We are aware of the U.S. Court of Appeals for the Federal Circuit’s decision in Sayers v. Department of Veterans Affairs , 954 F.3d 1370 (Fed. Cir. 2020), which held, among other things, that 38 U.S.C. § 714 does not apply to agency actions—such as the one in this appeal—based on conduct occurring before its enactment on June 23, 2017. Sayers, 954 F.3d at 1372. Sayers was issued after the initial decision in this matter and the filing of the appellant’s petition for review. We have considered whether that decision is relevant to the instant matter, but we observe that the appellant has made no claims relating to its holdings. 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.2 jurisdiction. If you wish 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 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The3 Board 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. 420 (2017). If you have a representative in this case, and 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 file4 with the EEOC no later than 30 calendar days after your representative 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 If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your 4 The 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. 1510.5 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.6	Crockett_JohnDA-0752-18-0221-I-1_Final_Order.pdf	2024-10-10	JOHN CROCKETT v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-0752-18-0221-I-1, October 10, 2024	DA-0752-18-0221-I-1	NP
435	https://www.mspb.gov/decisions/nonprecedential/Soto_Luis_J_NY-0752-23-0059-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LUIS J. SOTO, Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER NY-0752-23-0059-I-1 DATE: October 9, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Cindy M. Cruz-Rivera , Carolina, Puerto Rico, for the appellant. Krista M. Irons , Esquire, St. Louis, Missouri, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which affirmed the appellant’s removal. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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). the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). DISCUSSION OF ARGUMENTS ON REVIEW The administrative judge correctly found that the Board has jurisdiction over this appeal. For the first time on review, the appellant primarily argues that the Board lacks jurisdiction over his appeal. Petition for Review (PFR) File, Tab 1. The Board will generally 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; however, because the appellant’s argument implicates the Board’s jurisdiction, we will address his claim. Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016): Poole v. Department of the Army , 117 M.S.P.R. 516, ¶ 9 (2012). A Postal Service employee may file a Board appeal challenging an adverse action taken under 5 U.S.C. chapter 75 only if: (1) he is a preference eligible, a management or supervisory employee, or an employee engaged in personnel work in other than a purely nonconfidential clerical capacity; and (2) he has completed 1 year of continuous service in the same or similar positions. See Toomey v. U.S. Postal Service, 71 M.S.P.R. 10, 12 (1996). Here, the administrative judge found that the Board had jurisdiction over the appellant’s removal. Initial Appeal File2 (IAF), Tab 40, Initial Decision (ID) at 1. On review, the appellant argues that the administrative judge erred in assuming jurisdiction over his appeal. PFR File, Tab 1 at 8-14. In arguing that the Board lacks jurisdiction over the appeal he filed, the appellant appears to assert that the underlying matter in his appeal is an unfair labor practice (ULP) complaint, which is within the jurisdiction of the Federal Labor Relations Authority (FLRA). PFR File, Tab 1 at 8-17. Specifically, he appears to argue that the agency committed a ULP when it improperly removed him in violation of the collective bargaining agreement (CBA) and failed to advise him of his right to “continue his previous arbitration process or present a new one on the removal,” thereby forcing him to appeal to the Board. Id. Therefore, he argues that the administrative judge should have dismissed his appeal before holding a hearing on the merits. Id.; IAF, Tab 15 at 4-9. We find his arguments unavailing. The Board has previously explained that the Civil Service Reform Act (CSRA) replaced the prior patchwork system of laws and gave the FLRA authority over some matters but precluded the FLRA from adjudicating others, including removal actions that fall under the Board’s authority. Marshall v. Department of Veterans Affairs , 106 M.S.P.R. 478, ¶¶ 11-14 (2007). Specifically, it explained that under 5 U.S.C. § 7116(d), “[i]ssues which can properly be raised under an appeals procedure may not be raised [before the FLRA] as unfair labor practices.” Marshall, 106 M.S.P.R. 478, ¶ 13. As in Marshall, the “appeals procedure” relevant to the instant case is provided by the Board, which, under the CSRA, must adjudicate employee appeals from removals. Id.; see also 5 U.S.C. §§ 7512, 7513(d). Therefore, the propriety of the appellant’s removal is properly raised in an appeal filed with the Board and may not be raised as a ULP before the FLRA. Marshall, 106 M.S.P.R. 478, ¶ 14; see Dept. of Commerce v. Federal Labor Relations Authority , 976 F.2d 882, 888 (4th Cir. 1992).3 To the extent that the appellant argues that the agency forced him to proceed in this forum because it failed to advise him of his right to continue his pending grievance or allow him to file a new grievance on his removal in its decision letter, his argument is without merit. PFR File, Tab 1 at 8-14. Generally, an individual affected by a personnel action, such as a removal, that is both appealable to the Board and covered by a negotiated grievance procedure may contest the action before the Board or in a grievance, but not both. 5 U.S.C. § 7121(e)(1); Anderson v. U.S. Postal Service , 109 M.S.P.R. 558, ¶ 5 (2008). However, this binding election of remedies does not apply to Postal Service employees with appeal rights, who are entitled to pursue both a grievance and a Board appeal simultaneously. See Mays v. U.S. Postal Service , 995 F.2d 1056, 1058 (Fed. Cir. 1993); Anderson, 109 M.S.P.R. 558, ¶ 5. First, the appellant conceded below that the agency advised him of his right to file a grievance in its notice of proposed removal and testified that he did so. ID at 35-36; Hearing Audio, Tab 35-15 (testimony of the appellant); IAF, Tab 8 at 37. The appellant also acknowledges in his petition for review that “he was warned of his right to file a grievance” in the notice of proposed removal, and he filed a grievance. PFR File, Tab 1 at 12. According to the record, the appellant is a preference eligible and had completed more than 1 year of continuous service in his position before his removal. IAF, Tab 8 at 22. Therefore, to the extent that he filed a grievance on his proposed removal, he was not prohibited from filing a Board appeal. Thus, we agree with the administrative judge that the Board has jurisdiction over his appeal. Accordingly, we deny the petition for review and affirm the initial decision, which sustained the agency’s removal decision based on charges of improper conduct and failure to follow instructions.4 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 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.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 “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case, and 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 any6 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s7 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.9	Soto_Luis_J_NY-0752-23-0059-I-1_Final_Order.pdf	2024-10-09	LUIS J. SOTO v. UNITED STATES POSTAL SERVICE, MSPB Docket No. NY-0752-23-0059-I-1, October 9, 2024	NY-0752-23-0059-I-1	NP
436	https://www.mspb.gov/decisions/nonprecedential/Castillo_Claudio_A_AT-0752-22-0263-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CLAUDIO A. CASTILLO, Appellant, v. U.S. AGENCY FOR GLOBAL MEDIA, Agency.DOCKET NUMBER AT-0752-22-0263-I-1 DATE: October 9, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Georgia A. Lawrence , Esquire, and Shaun C. Southworth , Esquire, Atlanta, Georgia, for the appellant. James McLaren , Samantha R. Duncan , and Brooks Anderson , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member* *Member Kerner recused himself and did not participate in the adjudication of this appeal. FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed his involuntary retirement appeal for lack of jurisdiction. On review, 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the appellant reasserts that his retirement was due to agency misinformation because the agency did not correct his assumption that he would lose his pension and retirement benefits if he were removed. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 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.2 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 3 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 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. 420 (2017). If you have a representative in this case, and 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. 4 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.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 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. 5 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.6	Castillo_Claudio_A_AT-0752-22-0263-I-1_Final_Order.pdf	2024-10-09	null	AT-0752-22-0263-I-1	NP
437	https://www.mspb.gov/decisions/nonprecedential/Stevenson_Michael_E_DA-0714-19-0524-C-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MICHAEL E. STEVENSON JR., Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER DA-0714-19-0524-C-1 DATE: October 9, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Michael E. Stevenson Jr. , Piedmont, Oklahoma, pro se. Chau Phan , Denver, Colorado, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER ¶1The appellant has filed a petition for review of the compliance initial decision, which denied his petition for enforcement and found that the agency complied with the Board’s February 16, 2023 Final Order by canceling the appellant’s removal and issuing a new Standard Form (SF) 50 reflecting that the appellant retired on disability under the Federal Employees’ Retirement System 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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). (FERS), effective the day after the canceled removal action. On petition for review, the appellant argues that the effective date of his FERS disability retirement is incorrect; states that he unsuccessfully attempted to submit evidence demonstrating that he was “ready, willing, and able” to perform the duties of the position to which he was temporarily assigned at the time of his separation; alleges that the administrative judge was biased against him and favored the agency; reasserts that he should have been granted retirement credentials and a badge set; and argues that the agency improperly included documents in the record without his authorization. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. ¶2Regarding the appellant’s argument that he unsuccessfully attempted to file a response to the administrative judge’s show cause order arguing that he was “ready, willing, and able” to perform the duties of the temporary position to which he was assigned, even if we were to consider this argument, we would not reach a different result than that reached by the administrative judge.2 2 The appellant has provided several documents with his petition for review, all of which are either dated prior to the date the record closed in this appeal or were included in the record below, and so none of the documents are new. Compliance Petition for Review File, Tab 1 at 12-36, Tab 5 at 9-16; Stevenson v. Department of Veterans2 Compliance Petition for Review (CPFR) File, Tab 1 at 7-10. As the administrative judge correctly observed in the compliance initial decision, the appellant applied for and was granted a FERS disability retirement annuity commencing the day after his removal, and entitlement to a disability retirement under FERS requires a finding by the Office of Personnel Management (OPM) that the employee is “unable, because of disease or injury, to render useful and efficient service” in his position. Stevenson v. Department of Veterans Affairs , MSPB Docket No. DA-0714-19-0524-I-1, Initial Appeal File (IAF), Tab 17, Initial Decision (ID) at 5; see 5 U.S.C. § 8451(a)(1)(B). The appellant failed to provide any evidence demonstrating that, despite the fact that he was awarded a FERS disability retirement as of the day after the canceled removal action, he was ready, willing, and able to complete his job duties for any period after the date of the reversed action, even though he was specifically afforded the opportunity to offer such evidence. ID at 5; Stevenson v. Department of Veterans Affairs , MSPB Docket No. DA-0714-19-0524-C-1, Compliance File (CF), Tab 9. ¶3Regarding his specific argument that he could have performed the duties of the position to which he was temporarily assigned, although the appellant was assigned to temporary duties at the time of his removal, his position as a Supervisory Police Officer remained his position of record and was the position from which he was officially removed. CPFR File, Tab 1 at 13-14; IAF, Tab 4 at 12-15, 55-57. The Board has held that an appellant is entitled to back pay only if he is ready, willing, and able to work in the position he occupied prior Affairs, MSPB Docket No. DA-0714-19-0524-C-1, Compliance File, Tab 3 at 20, 31-34, Tab 7 at 4-5; see Okello v. Office of Personnel Management , 112 M.S.P.R. 563, ¶ 10 (2009) (noting that under 5 C.F.R. § 1201.115(d), the Board will not consider evidence submitted for the first time with a petition for review absent a showing that it is both new and material); Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980) (explaining that evidence that is already a part of the record is not new). The appellant also has not explained how the documents are relevant to his appeal, and so we need not consider them. Nevertheless, to the extent these documents pertained to the appellant’s argument that he was “ready, willing, and able” to serve in his position, we have addressed them here. 3 to the wrongful agency action, and an appellant’s willingness to return to work during the back pay period to a position other than the one he occupied prior to his removal is not sufficient to establish his entitlement to back pay, absent a finding of disability discrimination. Bullock v. Department of the Air Force , 80 M.S.P.R. 361, ¶ 13 (1998); Davis v. Department of the Navy , 50 M.S.P.R. 592, 598 (1991). ¶4The appellant’s argument that he should be entitled to back pay for the period between the effective date of his removal, September 11, 2019, and the date of the Board’s final order canceling the removal decision, February 16, 2023, is similarly unpersuasive. CPFR File, Tab 1 at 8-9, 11 . The agency canceled the removal effective September 11, 2019, thereby retroactively reinstating the appellant to his position. CF, Tab 3 at 12. Nevertheless, the Board has held that the cancellation of an employee’s removal does not require the agency to also reverse a separate intervening separation—in this case, the appellant’s separation from the agency as a result of his approved FERS disability retirement application. Washington v. Tennessee Valley Authority , 22 M.S.P.R. 377, 379-80 (finding that when an employee would have been properly subject to separation by reduction in force (RIF) if he had not been previously removed for cause, the agency had authority to retroactively separate the employee by RIF after the Board ordered it to rescind the removal action), aff’d, 770 F.2d 180 (Fed. Cir. 1985) (Table); see Abbott v. U.S. Postal Service , 2023 MSPB 14, ¶¶ 18-20 (concluding that the Board was without authority to grant the appellant back pay for the period beyond her disability retirement date when she had not challenged her retirement as a constructive removal and there was no finding of discrimination in connection with the agency’s actions leading to her separation). ¶5There is also no support for the appellant’s argument that the administrative judge was biased against him, favored the agency, or had a conflict of interest. CPFR File, Tab 1 at 4-6, Tab 5 at 4. The Board has consistently held that, in making a claim of bias against an administrative judge, the appellant must4 overcome the presumption of honesty and integrity that accompanies all administrative adjudicators. Washington v. Department of the Interior , 81 M.S.P.R. 101, ¶ 7 (1999) (citing In re King, 1 M.S.P.R. 146, 151 (1979)). 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 indicate a deep-seated favoritism or antagonism that would render fair judgment impossible. Simpkins v. Office of Personnel Management , 113 M.S.P.R. 411, ¶ 5 (2010) (quoting Bieber v. Department of the Army , 287 F.3d 1358, 1362-63 (Fed. Cir. 2002)). The appellant has not provided any evidence to support his bare allegations of bias, and so his claims do not meet this rigorous standard. The mere fact that an administrative judge ultimately ruled in favor of the agency does not establish bias. Hayden v. U.S. Postal Service , 15 M.S.P.R. 296, 300 (1983), aff’d, 758 F.2d 668 (Fed. Cir. 1984) (Table); Weaver v. Department of the Navy , 2 M.S.P.R. 129, 133 (1980). ¶6Similarly, regarding the appellant’s argument that the administrative judge’s acceptance of a pleading the agency submitted after the deadline evidenced bias, an administrative judge has wide discretion to control the proceedings before him and the Board will not infer bias based on an administrative judge’s case-related rulings. CPFR File, Tab 5 at 4; CF, Tab 5 at 2, Tab 7 at 4; see Vaughn v. Department of the Treasury , 119 M.S.P.R. 605, ¶ 18 (2013) (stating that the Board will not infer bias based on an administrative judge’s case-related rulings); King v. Department of the Army , 84 M.S.P.R. 235, ¶ 6 (1999) (explaining that an administrative judge’s case-related rulings, even if erroneous, are insufficient to establish bias warranting recusal and that claims of perceived adjudicatory errors do not provide a basis for recusal). 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).5 NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.6 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 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. 420 (2017). If you have a representative in this case, and 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 any7 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s8 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of 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 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.10	Stevenson_Michael_E_DA-0714-19-0524-C-1_Final_Order.pdf	2024-10-09	MICHAEL E. STEVENSON JR. v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-0714-19-0524-C-1, October 9, 2024	DA-0714-19-0524-C-1	NP
438	https://www.mspb.gov/decisions/nonprecedential/Hilliard_Cliffinnia_V_AT-0714-21-0031-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CLIFFINNIA V. HILLIARD, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER AT-0714-21-0031-I-1 DATE: October 9, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Cliffinnia V. Hilliard , Roswell, Georgia, pro se. Kimberly Kaye Ward , Decatur, Georgia, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member* *Member Kerner did not participate in the adjudication of this appeal. FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed her involuntary resignation appeal for lack of jurisdiction. On petition for review, the appellant repeats her arguments that the agency lacked a good faith basis to propose her removal and that her resignation was the result of 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). agency misinformation from the Human Resources Specialist, who provided her false information that, if she resigned, she would “be able to maintain [her] federal time and apply again before 3 years had passed.” Petition for Review (PFR) File, Tab 1 at 2; Initial Appeal File (IAF), Tab 1 at 4, Tab 7 at 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). 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). The appellant submits for the first time on review evidence concerning her 3-day suspension in January 2020, prior to her September 2020 proposed removal, namely her written response to the proposed suspension and email communications from three individuals stating that the appellant had not acted rudely during the incident giving rise to the inappropriate conduct charge. PFR File, Tab 1 at 3-10. Under 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 close of the record below despite the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980); see Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016) (stating that the Board generally will not consider a new argument raised for the2 first time on review absent a showing that it is based on new and material evidence). The appellant provides no explanation for why she did not submit this evidence prior to the close of the record. PFR File, Tab 1 at 2. In any event, this evidence concerning prior discipline identified in the September 2020 proposed removal for an unrelated incidence of inappropriate conduct is not relevant to the issue of whether her resignation was involuntary and does not demonstrate that the agency lacked a good faith basis for the removal action. IAF, Tab 4 at 345, 363. Accordingly, we deny the petition for review and affirm the initial decision. NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most 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. 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 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 you4 receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and 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. 5 If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Hilliard_Cliffinnia_V_AT-0714-21-0031-I-1_Final_Order.pdf	2024-10-09	CLIFFINNIA V. HILLIARD v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0714-21-0031-I-1, October 9, 2024	AT-0714-21-0031-I-1	NP
439	https://www.mspb.gov/decisions/nonprecedential/Lee_RichardNY-3330-21-0040-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD RICHARD LEE, Appellant, v. DEPARTMENT OF COMMERCE, Agency.DOCKET NUMBER NY-3330-21-0040-I-1 DATE: October 9, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Richard Lee , New York, New York, pro se. David M. Brown , Washington, D.C., for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman Henry J. Kerner , Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which denied corrective action pursuant to the Veterans Employment Opportunities Act of 1998 (VEOA). 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 distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. We MODIFY the initial decision to supplement the administrative judge’s analysis of equitable tolling, still finding that the appellant did not prove that equitable tolling should be applied and denying his request for corrective action. Except as expressly MODIFIED by this Final Order, we AFFIRM the initial decision. BACKGROUND The appellant applied for a Geographer position with the agency. Initial Appeal File (IAF), Tab 1 at 6, Tab 7 at 22-29. In his application, the appellant submitted a statement of service in lieu of a DD-214 because he was on active military duty and he did not have a DD -214. IAF, Tab 1 at 6. At some point, the appellant learned that he was not selected for the position.2 Id. On December 23, 2020, the appellant filed a complaint with the Department of Labor (DOL) alleging that the agency violated his rights under VEOA when it failed to consider his application because he provided a statement of service in lieu of a DD-214. IAF, Tab 1 at 6, 8-11. On January 6, 2021, DOL issued a 2 There is a discrepancy in the record as to when the appellant learned of the nonselection. For example, the appellant asserted that he learned of the nonselection on July 7, 2020, IAF, Tab 1 at 4, but the agency stated that he learned of the nonselection on February 25, 2020, IAF, Tab 7 at 5. We need not resolve this discrepancy because, even if we used the appellant’s date, it does not change the outcome.2 letter dismissing the appellant’s complaint because it was not filed within 60 days from the date of the alleged violation. Id. at 10-11. The appellant filed an appeal with the Board. IAF, Tab 1. In his initial appeal, the appellant stated that he made inquiries to various agencies regarding the nonselection, but he received no response. Id. at 6. Specifically, he stated that he filed a service request with the DOL National Contact Center on September 1, 2020, but he did not receive a response until December 11, 2020; he emailed two Veterans Employment and Training Service (VETS) staff persons; and he emailed vet_employment@opm.gov on July 7, 2020, and November 5, 2020, but he did not receive a response. Id. The administrative judge issued an order, noting that the Board may not have jurisdiction over the appeal and instructing the appellant to file a submission showing, among other things, “the date [he] believe[d] the agency violated [his] veterans’ preference rights, the date [he] filed a complaint with the Secretary of Labor, and the date [he] received written notice, if any, from the Secretary.” IAF, Tab 4 at 6-7. The order explained the conditions under which equitable tolling can be established, instructed the appellant to show that the deadline should be equitably tolled if he was late in filing with the Secretary, and directed him to produce any documentation supporting his claims. Id. at 5-6. The appellant did not file a response. The agency filed a motion to dismiss the appeal for lack of jurisdiction. IAF, Tab 7. Without holding a hearing, the administrative judge issued an initial decision denying corrective action, finding that there was no genuine dispute that the appellant did not file a complaint with the Secretary of Labor within 60 days of the alleged violation and concluding that he did not establish that equitable tolling should be applied. IAF, Tab 8, Initial Decision (ID) at 4-7. The appellant has filed a petition for review, and the agency has filed a response. Petition for Review (PFR) File, Tabs 1, 3. In his petition for review, the appellant alleges that the administrative judge failed to consider his argument3 that equitable tolling should apply based on his contacts with the DOL National Contact Center, two “VETS labor representatives,” and vets@doc.gov. PFR File, Tab 1 at 3-4. The appellant states that equitable tolling should apply because of the COVID-19 pandemic and because he was misled. Id. at 4. He also disputes the merits of whether he was entitled to veterans’ preference in this hiring action. Id. at 4-5. DISCUSSION OF ARGUMENTS ON REVIEW The parties do not appear to dispute that the appellant’s December 23, 2020 complaint with the Secretary of Labor was untimely filed. Nonetheless, we must consider whether equitable tolling should apply to excuse the appellant’s untimely filing. See Kirkendall v. Department of the Army , 479 F.3d 830, 835 (Fed. Cir. 2007) (en banc) (stating that the Board has the authority and the obligation to consider whether DOL’s finding that a VEOA complaint was untimely was erroneous); Garcia v. Department of Agriculture , 110 M.S.P.R. 371, ¶¶ 8-13 (2009) (applying the holding in Kirkendall and stating that the 60-day time limit for filing a complaint with the Secretary of Labor under 5 U.S.C. § 3330(a)(2)(A) is not jurisdictional and is subject to equitable tolling). The Supreme Court has stated that equitable tolling should be applied only “sparingly.” Irwin v. Department of Veterans Affairs , 498 U.S. 89, 96 (1990). Equitable tolling may apply “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 into allowing the filing deadline to pass.” Id. (internal citations omitted). Equitable tolling is a rare remedy that is to be applied in unusual circumstances and generally requires a showing that the litigant has been pursuing his rights diligently and some extraordinary circumstances stood in his way. Heimberger v. Department of Commerce , 121 M.S.P.R. 10, ¶ 10 (2014). 4 On review, the appellant argues that equitable tolling should apply because he was “misled” when he contacted multiple agencies that failed to respond to him or told him that he had “no further appeal rights.” PFR File, Tab 1 at 4. The appellant attaches to his petition for review an email chain with vets@doc.gov, beginning June 29, 2020.3 PFR File, Tab 1 at 6-7. His June 29, 2020 email stated that the agency improperly found him ineligible for the position and inquired as to the propriety of the agency’s decision. Id. at 6. After some correspondence with an unidentified agency official,4 the appellant, on August 5, 2020, requested information about with whom to file a formal complaint. Id. The unidentified agency official asked for a copy of the front page of the vacancy announcement and offered to contact the Human Resources Specialist to get clarification, but the appellant indicated that he had already spoken to and emailed the Branch Chief and the Human Resources Specialist, and he stated that he wanted to talk to someone else to see if they were correct. Id. at 7. Ultimately, the agency official stated that he did not know anyone else to whom he could refer the appellant. Id. The Board generally will not consider evidence submitted for the first time with a petition for review absent a showing that it was unavailable before the record was closed before the administrative judge despite the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980). The appellant had the opportunity to develop the record before the administrative judge; however, he did not respond to the order requiring him to provide additional evidence and argument, and he has not argued that the June 29, 2020 email chain was unavailable prior to the close of record before the administrative 3 The date of this email undermines the appellant’s assertion that he did not learn of the nonselection until July 7, 2020. However, as noted above, we need not resolve this discrepancy. 4 The email chain that the appellant provides on review includes numerous references to “[Quoted text hidden]” in the appellant’s emails and the agency official’s emails. Id. at 6-7. We do not understand what this bracketed language means in this context, but it seems to show that the appellant did not provide the full chain of correspondence between him and the agency official.5 judge. Even if we were to consider this email chain, we find that the appellant did not prove that the agency engaged in any misrepresentation or misleading statements that caused him to miss the statutory deadline. See, e.g., Frazer v. United States, 288 F.3d 1347, 1353-54 (Fed. Cir. 2002) (noting “equitable tolling is available only when the lateness is attributable, at least in part, to misleading government action”). Cf. Heimberger, 121 M.S.P.R. 10, ¶ 12 (finding that confusing language in a letter drafted by the Office of Special Counsel, which notified the appellant of two options without informing her of the consequences of electing one over the other, could have affirmatively misled her). The appellant reiterates on review that he contacted the DOL National Contact Center. PFR File, Tab 1 at 4. He explained in his initial appeal that he filed a “service request” with the DOL National Contact Center on September 1, 2020, but he did not hear back until December 11, 2020, when he was directed “to the proper resource.” IAF, Tab 1 at 6. Here, too, the appellant has not described or provided a copy of any misleading information that the DOL National Contact Center provided to him. We further find that the appellant failed to exercise due diligence because he did not, in any way, follow up with the DOL in the more than 3 months between September 1, 2020, and December 11, 2020. Finally, the appellant states that he emailed two VETS staff members, and he provides their email addresses. PFR File, Tab 1 at 4. However, the appellant has not explained who the individuals are, why he emailed them in the first place, on what dates he emailed them, or the contents of his emails. Id. He also does not state if he received any response from either of these individuals or the contents of any such responses. In conclusion, the appellant has not proven that he was misled, induced, or tricked into missing the statutory deadline; he did not offer any evidence to support his contention that he was told by any of these contacts that he had “no further appeal rights;” and we find that he has not proven that equitable tolling should be applied on this basis. Moreover, he has not described or provided any6 document that would lead us to conclude that he filed a defective pleading within the statutory period. Accordingly, we affirm the administrative judge’s finding that equitable tolling should not apply and her decision to deny corrective action. We have considered the appellant’s remaining arguments and find them unavailing. For example, the appellant has not explained why the COVID -19 pandemic constitutes grounds for equitable tolling. In light of our decision to affirm the administrative judge’s conclusion that equitable tolling should not apply and to deny corrective action, we need not address whether the agency properly applied veterans’ preference as the appellant alleged in his initial appeal or asserts on review. Therefore, we deny the petition for review and affirm the initial decision as modified herein. NOTICE OF APPEAL RIGHTS5 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.7 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 you8 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. 420 (2017). If you have a representative in this case, and 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: 9 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions 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. 11 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.12	Lee_RichardNY-3330-21-0040-I-1_Final_Order.pdf	2024-10-09	RICHARD LEE v. DEPARTMENT OF COMMERCE, MSPB Docket No. NY-3330-21-0040-I-1, October 9, 2024	NY-3330-21-0040-I-1	NP
440	https://www.mspb.gov/decisions/nonprecedential/Sharp_Harold_J_DE-0752-20-0103-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD HAROLD J. SHARP, Appellant, v. DEPARTMENT OF THE AIR FORCE, Agency.DOCKET NUMBER DE-0752-20-0103-I-1 DATE: October 9, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Harold J. Sharp , Cheyenne, Wyoming, pro se. Matthew Mackey and Ray Shackelford , Joint Base Andrews, Maryland, for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman Henry J. Kerner , Member FINAL ORDER The agency has filed a petition for review of the initial decision that reversed the appellant’s removal for conduct unbecoming. For the reasons set forth below, we GRANT the agency’s petition for review and REVERSE the initial decision. The appellant’s removal is SUSTAINED. 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). BACKGROUND The appellant was a GS-11 Quality Assurance Specialist for the agency, stationed at F.E. Warren Air Force Base, Wyoming. Initial Appeal File (IAF), Tab 15 at 18. On August 22, 2019, the agency proposed the appellant’s removal based on one charge of conduct unbecoming a Federal employee with three specifications, all relating to sexually inappropriate comments that the appellant allegedly made to two male service members, 1st lieutenant (Lt.) A and 1st Lt. D. Id. at 49-53. After the appellant responded to the notice, the deciding official issued a decision sustaining all specifications of the charge and removing the appellant effective December 5, 2019. Id. at 21-47. The appellant retired effective that same day.2 Id. at 18-19. The appellant filed a Board appeal, contesting the charges on the merits and raising an affirmative defense of retaliation for union grievance activity. IAF, Tab 1 at 3, 5, Tab 11 at 4-16. He waived his right to a hearing. IAF, Tab 1 at 2. After the close of the record, the administrative judge issued an initial decision reversing the appellant’s removal on the merits. IAF, Tab 20, Initial Decision (ID). For each of the three specifications, the administrative judge variously credited the appellant’s denials over the agency’s evidence and found that the agency’s allegations did not rise to the level of misconduct. ID at 5-12. Having reversed the appellant’s removal on those grounds, the administrative judge declined to reach the appellant’s affirmative defense. ID at 13-14. The agency has filed a petition for review, certifying compliance with the administrative judge’s interim relief order and disputing the administrative judge’s assessment of the evidence. Petition for Review (PFR) File, Tab 1. The appellant has not filed a response. 2 As the administrative judge correctly found, the appellant’s retirement did not divest the Board of jurisdiction over the removal action. IAF, Tab 9 at 2; see 5 U.S.C. § 7701(j); Mays v. Department of Transportation , 27 F.3d 1577, 1579-81 (Fed. Cir. 1994).2 ANALYSIS In an appeal of a removal under 5 U.S.C. chapter 75, the agency bears the burden of proving by preponderant evidence that its action was taken for such cause as would promote the efficiency of the service. MacDonald v. Department of the Navy, 4 M.S.P.R. 403, 404 (1980); 5 U.S.C. § 1201.56(a)(1)(ii). To meet this burden, the agency must prove its charge, establish a nexus between the charge and the efficiency of the service, and demonstrate that the penalty imposed was reasonable. Pope v. U.S. Postal Service , 114 F.3d 1144, 1147 (Fed. Cir. 1997). Even if the agency carries this burden, the removal may not be sustained if the appellant shows that it was based on a prohibited personnel practice described in 5 U.S.C. § 2302(b). 5 U.S.C. § 7701(c)(2)(B); 5 C.F.R. § 1201.56(a) (2)(iii). A charge of “conduct unbecoming” has no specific elements of proof; rather, it is established by proving that the appellant committed the acts of misconduct alleged in support of the broad label. Canada v. Department of Homeland Security , 113 M.S.P.R. 509, ¶ 9 (2010). When disrespectful or inappropriate comments are alleged, the Board will consider the context in which the employee made the allegedly inappropriate comments to determine whether the comments constituted misconduct and whether the penalty imposed for such misconduct is reasonable. Daigle v. Department of Veterans Affairs , 84 M.S.P.R. 625, ¶ 6 (1999). Specification 1 Under Specification 1, the agency alleged as follows: On or about 11 April 2019, you waited outside the Loftis Room for [1st Lt. A], and when he exited the room, engaged him in a conversation where you made unwanted sexual remarks such as, “Are you sure you’re not gay? Because sometimes you have these gay tendencies and you carry yourself like a gay man would.” You continued this conversation until [Major B] intervened.” IAF, Tab 15 at 49.3 In his initial decision, the administrative judge considered the unsworn memoranda of Major B and 1st Lt. C, who witnessed the April 11, 2019 conversation from afar and could not tell who said what to whom, but stated that 1st Lt. A appeared uncomfortable.3 ID at 7-8; IAF, Tab 15 at 79, 93. He also considered the sworn statement of 1st Lt. D, who stated that that he had seen the appellant take 1st Lt. A aside on several unspecified occasions and that 1st Lt. A at those times appeared uncomfortable. ID at 8; IAF, Tab 15 at 82. However, the administrative judge found that these statements were irrelevant because they did not pertain to whether the appellant made the inappropriate comments as charged. ID at 8. The administrative judge also considered the unsworn statements of 1st Lt. A and the appellant, the only percipient witnesses. ID at 6-8. The appellant claimed a good working relationship with 1st Lt. A and denied ever questioning 1st Lt. A’s sexuality or making sexual advances or suggestions towards him. IAF, Tab 15 at 72. 1st Lt. A stated in relevant part as follows: The point of conversation was aimless and not business related at all once he engaged me. He mentioned that during his 6 months [assigned to a different work unit] that I never came by to see him and that he missed seeing my “beautiful face.” This is one of the many encounters where he would bring up my sexual orientation. Having full knowledge that I am married and have stated that I am attracted only to members of the opposite sex, [the appellant] will periodically challenge my interests. Often, he would ask “Are you sure you’re not gay? Because sometimes you have these gay tendencies and you carry yourself like a gay man would.” IAF, Tab 15 at 88. The administrative judge found preponderant evidence that the appellant told 1st Lt. A that he missed seeing his “beautiful face,” but that this statement alone did not rise to the level of misconduct. ID at 8-9. He also found that 1st Lt. A’s statement referred to the appellant making comments about his 3 Major B and 1st Lts. A, C, and D later swore to the accuracy of their signed statements. IAF, Tab 18 at 77-78, 81-82, 85-86, 91-92.4 sexuality in the past but not on April 11, 2019, and in any event, these alleged comments also were not severe enough to rise to the level of misconduct. ID at 9. On petition for review, the agency argues that the administrative judge provided no analysis to support his conclusion that the appellant’s alleged remarks were not sufficiently severe to constitute actionable misconduct. PFR File, Tab 1 at 9-10. The agency further argues that the administrative judge should not have dismissed the statements of Major B and 1st Lts. C and D as irrelevant because these individuals provided evidence of 1st Lt. A’s reaction to the appellant’s comments. Id. at 9-11. It argues that “unwanted sexual remarks made on duty and in the workplace to a coworker, making that coworker visibly uncomfortable, are of a nature that would support a charge of conduct unbecoming.” Id. at 10. We decline to rule that questions or comments from one coworker to another about his sexual orientation are per se inappropriate in the workplace. The inappropriateness or not of such comments would depend on the totality of the circumstances, including exactly what was said, the preexisting personal relationship between the two employees, and whether the employee being accused of misconduct knew or should have known that his questions or comments were unwanted. See Daigle, 84 M.S.P.R. 625, ¶ 6 (finding that the inappropriateness of comments depends to a certain extent on their context). For this reason, we agree with the agency that the statements of Major B and 1st Lt. C could be relevant to the extent that they tend to show that the appellant knew or should have known that 1st Lt. A was uncomfortable with the conversation.4 However, this presupposes that the appellant actually made “sexual remarks” during this conversation as alleged by the agency. IAF, Tab 15 at 49. For the reasons explained in the initial decision, we agree with the administrative judge that the agency failed to prove that the appellant specifically 4 We agree with the administrative judge that the general statements of 1st Lt. D are not relevant to this specification because they do not pertain to the particular conversation at issue. ID at 9; IAF, Tab 15 at 82. 5 said, “Are you sure you’re not gay? Because sometimes you have these gay tendencies and you carry yourself like a gay man would.” IAF, Tab 15 at 49. As the administrative judge found, the only evidence of this specific comment, 1st Lt. A’s statement, refers to the appellant making this comment in the past, and not on April 11, 2019, as charged. ID at 9; IAF, Tab 15 at 88. However, reading 1st Lt. A’s statements as a whole, he clearly states that the appellant brought up his sexual orientation during the April 11, 2019 conversation. IAF, Tab 15 at 88. Apparently, 1st Lt. A did not recall exactly how this particular conversation went, but a reasonable reading of his statement is that the appellant took a similar approach as he had in the past, questioning his sexual orientation on the basis of certain attributes that he perceived. Id. We find that Lt. A’s statement, if true, proves the essence of the charge of conduct unbecoming a Federal employee. See Prather v. Department of Justice , 117 M.S.P.R. 137, ¶¶ 25-29 (2011) (finding that an agency proved the essence of a charge of conduct unbecoming by proving he persuaded women to engage in sexual acts with him by telling them that they would be “healed” if they had sexual relations with him). The appellant presented quite a different account, stating that 1st Lt. A approached him directly, greeted him warmly, and engaged him in conversation about multiple non-sexual topics. Id. at 73. We find 1st Lt. A’s account to be more credible because, unlike the appellant’s, it is consistent with the statements of Major B and 1st Lt. C, and 1st Lt. A swore to its accuracy. See Social Security Administration v. Whittlesey , 59 M.S.P.R. 684, 692 (1993) (stating that a sworn statement has greater evidentiary weight than one that is unsworn), aff’d, 39 F.3d 1197 (Fed. Cir. 1994) (Table); Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987) (stating that, to resolve credibility issues, the Board will consider, among other things, the contradiction of the witness’s version of events by other evidence or its consistency with other evidence). Based on this evidence, we find that the appellant’s comments about 1st Lt. A’s sexual orientation constituted misconduct under the totality of the6 circumstances. The appellant knew or should have known that his remarks were unwanted because 1st Lt. A had previously expressed to the appellant that he was firm in his sexual orientation and he was visibly uncomfortable during the April 11, 2019 conversation. IAF, Tab 15 at 79, 88, 93. The appellant also knew or should have known that his personal relationship with 1st Lt. A did not lend itself to such discussions; 1st Lt. A had been intentionally avoiding the appellant due to exactly this type of harassment, and his success in doing so was the very pretext that the appellant used to initiate the conversation. IAF, Tab 15 at 88. Therefore, we conclude that the agency met its burden to prove specification 1. Specification 2 Under Specification 2, the agency alleged as follows: “Between on or about 1 October 2016 and on or about 11 April 2019, you had indicated to [1st Lt. A] that you had sexually defiled a photo of yourself and [1st Lt. A].” IAF, Tab 15 at 49. The administrative judge found that this specification was not in accordance with due process because it was overly vague with respect to the timeframe and to the misconduct alleged. ID at 9-10. The administrative judge further found that, even if he were to reach the merits of this specification, he would still not sustain it because the evidence that the agency offered in support was insufficient. ID at 10. Specifically, he considered 1st Lt. A’s sworn statement that once after a game of racquetball, he took a picture with the appellant at the appellant’s request, and “days later,” the appellant “strongly insinuated that he sexually defaced the picture of us.”5 ID at 10; IAF, Tab 15 at 88. The administrative judge found that this conclusory statement did not, in and of itself, constitute preponderant evidence that the alleged misconduct occurred. ID at 10. 5 The appellant denied having “any illicit pictures of [1st Lt. A] or myself that I would perform such an act.” IAF, Tab 15 at 70. The administrative judge found that this statement did not address whether he made the comments to 1st Lt. A as alleged. ID at 10.7 On petition for review, the agency disputes the administrative judge’s finding that Specification 2 was so vague as to violate guarantees of due process. PFR File, Tab 1 at 12-14. We agree.6 Due process requires that the employee receive notice of the reasons for his removal that is sufficiently detailed for him to make a meaningful reply, Mason v. Department of the Navy , 70 M.S.P.R. 584, 586 (1996), and in this case, the specification as written is quite vague as to the time that this incident supposedly occurred and exactly what the appellant was supposed to have said about “sexually defiling” the unidentified photograph, IAF, Tab 15 at 49. However, reading the evidence that the agency attached to its proposal, its allegation becomes more clear. The incident was supposed to have occurred approximately 2 years previously, shortly after the appellant and 1st Lt. A played racquetball together. Id. at 62-63, 86, 88. After the match, the appellant allegedly took a photograph of himself with 1st Lt. A, and a few days later, salaciously complimented 1st Lt. A’s appearance in the picture and told him that he “may have” used the picture as a visual aid for masturbation and achieved one of the best orgasms of his life. Id. at 63, 86, 88. In any event, by the time he replied to the notice of proposed removal, the appellant clearly had a sufficient understanding of what the agency was alleging because he formulated a clear and coherent reply, specifically denying “self-pleasing myself by referencing a photo of me and [1st Lt. A]. Id. at 28-29. When an appellant comes forward and refutes a charge made against him, the Board cannot find that he was not given notice of the charge. Bias v. Equal Employment Opportunity Commission , 20 M.S.P.R. 216, 219 (1984). 6 Although we do not find a due process violation in this case, we disagree with the agency that it was inappropriate for the administrative judge to raise the issue at all. PFR File, Tab 1 at 14. An administrative judge may raise due process issues sua sponte if necessary to prevent a manifest injustice. Powers v. Department of the Treasury , 86 M.S.P.R. 256, ¶ 10 n.3 (2000). This is especially so in cases like this one where the appellant is proceeding pro se.8 The agency also contests the administrative judge’s finding that the evidence of record is insufficient to support the charge. PFR File, Tab 1 at 14-15. We agree with the agency on this point as well. The administrative judge found that the only evidence of record on this issue was 1st Lt. A’s statement that the appellant “strongly insinuated that he sexually defaced the picture of us.” ID at 10. However, as recounted above, 1st Lt. A provided a much more detailed description of this incident, what led up to it, and exactly what was said. IAF, Tab 15 at 86, 88. These statements can hardly be characterized as conclusory, and even though they are somewhat jarring, we do not find them to be inherently improbable or contrary to any record evidence apart from the appellant’s unsworn denials. We therefore credit 1st Lt. A’s sworn statement over the appellant’s unsworn statement to the contrary. See Whittlesey, 59 M.S.P.R. at 692. The appellant’s statements to 1st Lt. A obviously constituted actionable misconduct. Therefore, we conclude that the agency met its burden to prove specification 2. Specification 3 Under Specification 3, the agency alleged as follows: [B]etween on or about 1 February 2017 and on or about 28 February 2017, you conducted an [Isolated Personnel Report (ISOPREP)] appointment with [1st Lt. D] in such a way that made [1st Lt. D] feel uncomfortable. Specifically, you secluded yourself with [1st Lt. D] and questioned [1st Lt. D] about his sexual orientation. This is not part of the ISOPREP process. IAF, Tab 1 at 49. In his initial decision, the administrative judge considered the sworn declaration of 1st Lt. D, who stated that he approached the appellant to ask him for help with ISOPREP actions prior to going on international leave, and that the appellant then escorted him into a computer room and closed the door behind them. ID at 11; IAF, Tab 15 at 83. According to 1st Lt. D, the appellant “used this as an opportunity to ask questions about myself. With his questions, [the9 appellant] seemed to take a particular interest in topics like my racial heritage and sexual orientation.” IAF, Tab 15 at 83. The administrative judge also considered the appellant’s response to the notice of proposed removal, in which he admitted to conducting ISOPREP training with 1st Lt. D but denied questioning him about his sexuality. ID at 11-12; IAF, Tab 15 at 28-29. The appellant also admitted to closing the door to the computer room, but he explained that this is standard operating procedure because the room is classified, and the doors need to remain closed whenever the computer is in use. IAF, Tab 15 at 29. In light of this evidence, the administrative judge found that the appellant’s act of inviting 1st Lt. D into the computer room and closing the door was appropriate given the task at hand and the requirement that the door remain closed while the computer was in operation. ID at 12. He further found the appellant’s denial of misconduct to be more credible than 1st Lt. D’s “conclusory statement that the appellant ‘seemed to take a particular interest in [his] sexual orientation,’” and that the agency failed to present any evidence, let alone preponderant evidence, to support its specification. ID at 12. On petition for review, the agency appears to dispute the appellant’s assertion about the need to close the computer room door, questioning why 1st Lt. D would have felt uncomfortable if this were the correct protocol. PFR File, Tab 1 at 15. We decline to consider this argument, which the agency did not raise below. 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 previously available despite the party’s due diligence). Even now, the agency has not affirmatively argued that the appellant’s statement was incorrect, much less pointed to any actual evidence contradicting it. The Board is not acquainted with the computer rooms at Warren Air Force Base, and we lack independent knowledge of the protocols for securing its various classified areas. In the absence of evidence to the contrary, we accept as true the10 appellant’s statement that the doors to this room are required to be closed while the computer is in use. IAF, Tab 15 at 29. The agency also argues that the administrative judge failed to make credibility determinations with respect to Specification 3. It argues that the appellant has shown a propensity for untruthfulness in the past, and that 1st Lt. D’s statement accusing the appellant of misconduct is more credible than the appellant’s denial thereof. PFR File, Tab 1 at 16-17. However, we find that credibility determinations are immaterial to our analysis of Specification 3 because, as the administrative judge correctly found, the agency has not provided any evidence whatsoever to support this specification. ID at 12; see Hooper v. Department of the Interior , 120 M.S.P.R. 658, ¶ 14 (2014) (finding credibility determinations to be unnecessary in the absence of conflicting testimony). Putting the appellant’s denials of misconduct aside and taking everything in 1st Lt. D’s statements as true, there is still no evidence that the appellant “questioned [1st Lt. D] about his sexual orientation” as alleged. IAF, Tab 15 at 49. The closest that the agency comes to providing such evidence is 1st Lt. D’s statement that the appellant, with his questions, “seemed to take a particular interest in topics like my racial heritage and sexual orientation.” Id. at 83. However, we decline to find that interest in these topics, alone, is misconduct. See Bostock v. Clayton County , 590 U.S. 644, 666-73 (2020) (determining that discrimination based on sexual orientation is discrimination because of sex in violation of Title VII). 1st Lt. D was unable to recount even vaguely what the appellant said that led him to believe that the appellant was taking an interest in his sexual orientation such that we could make a finding that the appellant’s questions were inappropriate. IAF, Tab 15 at 82. Therefore, we agree with the administrative judge that the agency did not prove specification 3. Nevertheless, because we have sustained Specifications 1 and 2, we conclude that the agency has proved its charge of conduct unbecoming. See Burroughs v. Department of the Army , 918 F.2d 170, 172 (Fed. Cir. 1990)11 (stating that, where more than one event or factual specification supports a single charge, proof of one or more, but not all, of the supporting specifications is sufficient to sustain the charge). Penalty When all of the agency’s charges are sustained, but some of the underlying specifications are not, the agency’s penalty determination 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). Nevertheless, an agency’s failure to sustain all of its supporting specifications may require, or contribute to, a finding that the agency’s penalty is not reasonable. Id. at 651. Therefore, although the appellant has not challenged the severity of the penalty per se, some discussion of the issue is warranted. Cf. Douglas v. Veterans Administration , 5 M.S.P.R. 280, 308 (1981) (“In many cases the penalty, as distinct from the underlying conduct alleged by the agency, will go unchallenged and need not require more than prima facie justification.”). The record in this appeal contains a Douglas factors worksheet completed by the deciding official. IAF, Tab 18 at 16-23. Regarding the nature and severity of the offense, which is usually of primary importance in making a penalty determination, see Jones v. Department of the Interior , 97 M.S.P.R. 282, ¶ 13 (2004), the deciding official found the appellant’s misconduct to be extremely serious because it was intentional and had a severely negative effect on the Warren Air Force Base workforce, to the point that service members were altering their own behavior to avoid encountering the appellant, IAF, Tab 18 at 16. Even in the absence of Specification 3, we agree with the deciding official’s assessment. The Board views harassment of this sort as a serious matter and has routinely upheld removals for it, even when significant mitigating factors are present. E.g., Alberto v., Department of Veterans Affairs , 98 M.S.P.R. 50, ¶¶ 10-12 (2004), aff’d, No. 05-3090, 2005 WL 1368150 (Fed. Cir. June 10, 2005); Alexander v. U.S. Postal Service , 67 M.S.P.R. 183, 188-92 (1995); Carosella v.12 U.S. Postal Service , 30 M.S.P.R. 199, 202-03 (1986), aff’d, 816 F.2d 638 (Fed. Cir. 1987). The deciding official also considered the appellant’s prior discipline, including a March 26, 2019 letter of reprimand and suspensions in 2008 and 2010. He found this prior discipline to be an aggravating factor. IAF, Tab 15 at 49, 94 99, 104; Tab 18 at 17-18. He also found that the appellant was well aware that his conduct was inappropriate, and that this was an aggravating factor as well. IAF, Tab 18 at 18, 21. We agree. We also agree with the deciding official that, in light of the appellant’s prior discipline for similar actions and his lack of remorse, he has not exhibited rehabilitative potential. Id. at 21. The deciding official considered some mitigating factors as well, including the appellant’s 34 years of Federal service and good work performance. Id. at 18. However, he found that, notwithstanding these positive aspects of the appellant’s work record, removal was still the appropriate penalty. Having considered the deciding official’s penalty analysis as a whole, we find that he conscientiously considered the issue, finding some factors mitigating, some aggravating, and still others neutral. IAF, Tab 18 at 16-23. We further find that his chosen penalty of removal was well within the tolerable limits of reasonableness. See Douglas, 5 M.S.P.R. at 306. Therefore, we sustain the agency’s decision to remove the appellant. Retaliation for Prior Grievance Activity In his initial decision, the administrative judge found that the appellant’s claim of retaliation for grievance activity did not involve protected whistleblowing, and therefore, it was protected under 5 U.S.C. § 2302(b)(9)(A) (ii). ID at 13-14. Neither party contests this finding, and we agree with the administrative judge’s analysis. For an appellant to prevail on a contention of illegal retaliation under 5 U.S.C. § 2302(b)(9)(A)(ii), he has the burden of showing that: (1) he engaged in protected activity; (2) the accused official knew of the activity; (3) the adverse action under review could have been retaliation13 under the circumstances; and (4) there was a genuine nexus between the alleged retaliation and the adverse action. Warren v. Department of the Army , 804 F.2d 654, 656 58 (Fed. Cir. 1986). The appellant’s theory of the case is that the removal action was orchestrated by his former supervisor, Lt. Colonel E, and Lt. Colonel E’s superior, Colonel F, in retaliation for union activity in which the appellant complained about Lt. Colonel E’s treatment of him. IAF, Tab 16 at 9- 12. We find that the first part of the Warren test is met. It is undisputed that the appellant engaged in protected activity on April 5, 2019, when, under negotiated grievance procedures, he filed a Step 1 grievance regarding a letter of reprimand, and on April 30, 2019, when he filed a Step 2 grievance on the same matter. IAF, Tab 1 at 102, 104. He also engaged in protected activity on July 1, 2019, when he filed a grievance concerning his performance evaluation. IAF, Tab 16 at 44. We find that the second part of the Warren test is met as well. It is undisputed that both Lt. Colonel E and Colonel F were aware of the appellant’s grievance activity. IAF, Tab 15 at 102-05, Tab 16 at 36-38, Tab 18 at 5. Regarding the third part of the test, we find that it has been met with respect to Colonel F but not with respect to Lt. Colonel E. Specifically, the appellant has shown that Colonel F oversaw the investigation into the allegations of harassment underlying the removal. IAF, Tab 15 at 28, 30-31. Although Colonel F did not propose or decide the appellant’s removal, we find that his involvement in the investigatory process is sufficient to show that the removal could have been retaliation under the circumstances. See Warren, 804 F.2d at 658 (stating that, if agency officials have knowledge of prior protected activity and even slight involvement in it, and are also involved in advising or effectuating the removal of an employee, this may justify an inference of retaliatory motive sufficient to meet the third part of the test). However, the same cannot be said for Lt. Colonel E. Although the appellant speculates, there is no14 actual evidence that Lt. Colonel E prompted 1st Lts. A and D to fabricate allegations of sexual harassment against him, and there is no evidence that Lt. Colonel E had any involvement in the investigation or in any other aspect of the removal process.7 IAF, Tab 16 at 10-11. To establish a genuine nexus under the fourth part of the Warren test, the appellant must show that the adverse action was taken in retaliation for his protected activity. This requires the Board to weigh the severity of the appellant’s misconduct against the agency’s motive to retaliate. Mattison v. Department of Veterans Affairs , 123 M.S.P.R. 492, ¶ 8 (2016). We agree with the appellant that Colonel F would have some motive to retaliate for his grievance activity to the extent that the appellant criticized the character and conduct of one of his appointed subordinates. IAF, Tab 15 at 38-39, Tab 16 at 12; see Whitmore v. Department of Labor , 680 F.3d 1353, 1370-71 (Fed. Cir. 2012) (finding evidence of retaliatory motive in an individual right of action (IRA) appeal to the extent that the appellant’s disclosures reflected poorly on agency management in general). That said, we find that such motive would not be particularly strong because neither Lt. Colonel E nor Colonel F seem to have suffered any adverse consequences from the grievance activity apart from expending some time and effort to address it. See Runstrom v. Department of Veterans Affairs , 123 M.S.P.R. 169, ¶ 17 (2016) (finding weak evidence of retaliatory motive in an IRA appeal where the alleged retaliating officials did not suffer any ramifications as a result of the appellant’s disclosure). The evidence supporting removal, however, is quite strong for the reasons explained above. Although the agency failed to prove Specification 3 of its charge, the remainder of the removal action, including the first two specifications and the penalty analysis, is well supported by the record. In assessing the fourth Warren factor, we also find it appropriate to consider the degree of influence that Colonel F actually had over the removal 7 The appellant questions why Lt. Colonel E waited 3 weeks to reassign him after receiving 1st Lt. A’s allegations, but we fail to see how this might constitute evidence of pretext, as the appellant asserts. IAF, Tab 16 at 10-12.15 action. See Webster v. Department of the Army , 911 F.2d 679, 689 (Fed. Cir. 1990) (“The burden of demonstrating a ‘nexus’ between ‘the retaliation and petitioner’s removal,’ . . . ultimately involves establishing a causal connection between the protected activity and the adverse action.” (quoting Warren, 804 F.2d at 656)). There is no evidence that the investigation in this case was pretextual or that Colonel F exercised significant control over its course. Although the investigating officer ultimately recommended the appellant’s removal, IAF, Tab 15 at 66, there is no evidence that Colonel F directed him to do so.8 Furthermore, apart from transmitting the completed report of investigation, there is no evidence that Colonel F ever communicated directly with the proposing or deciding officials about this matter. Considering the slight evidence of retaliatory motive and the tenuousness of its connection to the strongly supported removal action, we find that the appellant has not proven his affirmative defense of retaliation. See Crist v. Department of the Navy , 50 M.S.P.R. 35, 39-40 (1991). The appellant’s affirmative defense is DENIED. NOTICE OF APPEAL RIGHTS9 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the 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 8 The appellant states his belief that the investigating officer was coached by either Lt. Colonel E or Colonel F, but he has not offered any evidence to support this belief. IAF, Tab 15 at 32. 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.16 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 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 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. 420 (2017). If you have a representative in this case, and 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: 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 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 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 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. 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. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.20	Sharp_Harold_J_DE-0752-20-0103-I-1_Final_Order.pdf	2024-10-09	HAROLD J. SHARP v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DE-0752-20-0103-I-1, October 9, 2024	DE-0752-20-0103-I-1	NP
441	https://www.mspb.gov/decisions/nonprecedential/Richards_BrianSF-315H-21-0326-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD BRIAN RICHARDS, Appellant, v. DEPARTMENT OF THE AIR FORCE, Agency.DOCKET NUMBER SF-315H-21-0326-I-1 DATE: October 8, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Brian Richards , San Diego, California, pro se. Chief Labor Law , Joint Base Andrews, Maryland, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his probationary termination appeal for lack of jurisdiction. On petition for review, the appellant argues that the initial decision was contrary to law and amounted to harmful error and that res judicata or collateral estoppel bars the agency from litigating the merits of his termination. He also requests that the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). Board sanction the agency and exclude the agency representative. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 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.2 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 3 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 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. 420 (2017). If you have a representative in this case, and 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. 4 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.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 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. 5 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.6	Richards_BrianSF-315H-21-0326-I-1_Final_Order.pdf	2024-10-08	BRIAN RICHARDS v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. SF-315H-21-0326-I-1, October 8, 2024	SF-315H-21-0326-I-1	NP
442	https://www.mspb.gov/decisions/nonprecedential/Jackson_AlfonzaAT-0752-19-0495-I-2_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ALFONZA JACKSON, JR., Appellant, v. DEPARTMENT OF THE NAVY, Agency.DOCKET NUMBER AT-0752-19-0495-I-2 DATE: October 7, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Bobby Devadoss , Esquire, and McRae Cleaveland , Esquire, Dallas, Texas, for the appellant. Stephen Mullins , Quantico, Virginia, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which sustained the appellant’s removal. In his petition for review the appellant argues, among other things, that the administrative judge erred in his creditability determinations, in granting sanctions in the agency’s favor, and in interpreting 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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). statements about undisclosed video evidence in his grant of sanctions . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 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.2 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 3 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 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. 420 (2017). If you have a representative in this case, and 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: 4 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit 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. 5 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.6	Jackson_AlfonzaAT-0752-19-0495-I-2_Final_Order.pdf	2024-10-07	null	AT-0752-19-0495-I-2	NP
443	https://www.mspb.gov/decisions/nonprecedential/Rayan_NusratSF-315H-23-0477-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD NUSRAT RAYAN, Appellant, v. DEPARTMENT OF THE NAVY, Agency.DOCKET NUMBER SF-315H-23-0477-I-1 DATE: October 7, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Mamun Rayan , Port Hueneme, California, for the appellant. Jeffrey Gott , Esquire, Port Hueneme, California, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed her probationary termination appeal for lack of jurisdiction. On petition for review, the appellant continues to dispute the merits of the agency’s termination action. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL 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 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.2 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 obtain3 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and 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 4 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit 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. 5 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.6	Rayan_NusratSF-315H-23-0477-I-1_Final_Order.pdf	2024-10-07	NUSRAT RAYAN v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-315H-23-0477-I-1, October 7, 2024	SF-315H-23-0477-I-1	NP
444	https://www.mspb.gov/decisions/nonprecedential/Lucas_Johnny_L_CB-7121-21-0006-V-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JOHNNY L. LUCAS, JR., Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER CB-7121-21-0006-V-1 DATE: October 7, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Charles M. Tillman , Irving, Texas, for the appellant. Nadalynn F. Hamilton , Esquire, Plano, Texas, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a request for review of an arbitration decision that upheld his removal. For the reasons set forth below, we DISMISS the request for review for lack of jurisdiction and FORWARD the appellant’s submission to the Dallas Regional Office for docketing as a removal appeal. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). BACKGROUND The appellant was a preference eligible PS-07 Bulk Mail Clerk for the agency. Request for Review (RFR) File, Tab 1 at 1. On July 18, 2018, the agency issued a decision removing him for attendance reasons, effective August 6, 2018. RFR File, Tab 2 at 10-11. The appellant grieved his removal, the matter proceeded to arbitration, and on March 30, 2020, the arbitrator issued an award denying the grievance. Id. at 35-42. The appellant’s union received a copy of the award on May 7, 2020. Id. at 35. On November 3, 2020, the appellant, through his union representative, filed the instant request for arbitration review. RFR File, Tab 1. The Clerk of the Board issued an acknowledgment order, notifying the appellant of the applicable jurisdictional standard. RFR File, Tab 3 at 2-3. The Clerk of the Board also notified the appellant that his request for review appeared to be untimely and directed him to file evidence and argument on the issue. Id. at 3. The appellant responded on both the jurisdiction and timeliness issues. RFR File, Tab 5. The agency responded as well, arguing that the appellant’s request for review was untimely and that he failed to show good cause for the delay. RFR File, Tab 6. The appellant has moved to strike the agency’s response as untimely itself, RFR File, Tab 7, and the agency has moved to strike the appellant’s motion as not contemplated by the Board’s regulations, RFR File, Tab 8. ANALYSIS As a general rule, an individual affected by a personnel action that is both appealable to the Board and covered by a negotiated grievance procedure may contest the action before the Board or via a grievance, but not both; an individual who elects to grieve may seek Board review of the final decision on the grievance if he claims that the action was based on prohibited discrimination. See 5 U.S.C. § 7121(d). However, 5 U.S.C. § 7121(d) does not apply to the U.S. Postal Service, and Postal Service employees have no right to Board review of an2 arbitrator’s award. See Clements v. U.S. Postal Service , 101 M.S.P.R. 218, ¶ 3 (2006); Marjie v. U.S. Postal Service , 70 M.S.P.R. 95, 98 (1996); Lucas v. U.S. Postal Service, 39 M.S.P.R. 459, 461 (1989). Therefore, regardless of the timeliness issue, the appellant’s request for arbitration review must be dismissed for lack of jurisdiction.2 See Ramos v. Department of the Army , 48 M.S.P.R. 399, 403 (1991) (declining to reach the timeliness issue in light of dismissal on jurisdictional grounds), aff’d, 956 F.2d 1173 (Fed. Cir. 1992) (Table). However, the appellant, as a preference-eligible veteran, has the right to appeal his removal directly to the Board, and he may do so despite having already filed a grievance on the matter. See Fedon v. U.S. Postal Service , 78 M.S.P.R. 657, 660 (1998); Marjie, 70 M.S.P.R. at 98. We therefore forward the appellant’s submission to the Board’s Dallas Regional Office for docketing as a removal appeal under 5 U.S.C. chapter 75. We note that the appellant’s November 3, 2020 request for arbitration review was filed more than 2 years after the effective date of his removal. RFR File, Tab 1, Tab 2 at 10. Therefore, even treating the filing date of the request for arbitration review as the filing date for the removal appeal, see Hammond v. U.S. Postal Service, 72 M.S.P.R. 263, 265 (1996), there is still a significant timeliness issue. After docketing the appeal, the administrative judge should inform the appellant that his appeal appears to be untimely and provide him the opportunity to establish that the appeal was timely filed or that there was good cause for the delay. See 5 C.F.R. §§ 1201.22(b), 1201.154. 2 In light of the foregoing, we decline to rule on the parties’ competing motions to strike. Regardless of the information contained in the agency’s reply to the acknowledgment order, we would conclude that the Board lacks jurisdiction over this request for arbitration review.3 NOTICE OF APPEAL RIGHTS3 This is the Board’s final decision on the appellant’ request for review of the arbitration decision. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case, and 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 any5 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s6 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of 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/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Lucas_Johnny_L_CB-7121-21-0006-V-1_Final_Order.pdf	2024-10-07	null	CB-7121-21-0006-V-1	NP
445	https://www.mspb.gov/decisions/nonprecedential/Ballesteros_SylviaSF-0353-23-0468-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SYLVIA BALLESTEROS, Appellant, v. SOCIAL SECURITY ADMINISTRATION, Agency.DOCKET NUMBER SF-0353-23-0468-I-1 DATE: October 7, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 James R. Hefflin , Newport Beach, California, for the appellant. Henry Chi , Esquire, and Matthew C. Miller , Esquire, Baltimore, Maryland, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed this restoration appeal for lack of jurisdiction. On petition for review, the appellant states only that “her appeal was wrongly decided based on the evidence that is already in the record.” Generally, we grant petitions such as this 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 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. 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.2 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you3 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. 420 (2017). If you have a representative in this case, and 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: 4 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit 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. 5 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.6	Ballesteros_SylviaSF-0353-23-0468-I-1_Final_Order.pdf	2024-10-07	SYLVIA BALLESTEROS v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. SF-0353-23-0468-I-1, October 7, 2024	SF-0353-23-0468-I-1	NP
446	https://www.mspb.gov/decisions/nonprecedential/Gonzalez_Ramiro_J_DE-844E-23-0220-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD RAMIRO J. GONZALEZ, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER DE-844E-23-0220-I-1 DATE: October 7, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Ramiro J. Gonzalez , Aurora, Colorado, pro se. Alison Pastor , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his appeal alleging that the Office of Personnel Management (OPM) had denied his application for a deferred annuity on the grounds that the appellant did not show that OPM has issued a final decision on the matter. On petition for 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). review, the appellant argues that the appeal was erroneously dismissed, asserting that it involved his service computation date and his eligibility for a deferred annuity.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). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision.3 5 C.F.R. § 1201.113(b). 2 The deadline for filing a petition for review of the initial decision was August 18, 2023, but the appellant did not file his petition until August 25, 2023. Because we are denying the petition, we need not address whether it was timely filed, or if not, whether the appellant has shown good cause for any filing delay. 3 The Board generally has jurisdiction over appeals of OPM final decisions affecting an individual's rights or interests under the Federal Employees Retirement System (FERS). See 5 U.S.C. § 8461(e)(1); 5 C.F.R. § 841.308. A final decision is a written decision in which OPM provides notice of the right to appeal the decision to the Board, be it following OPM's decision on a request for reconsideration of an initial decision or in the first instance. See 5 C.F.R. §§ 841.305-.308; see also Okello v. Office of Personnel Management , 120 M.S.P.R. 498, ¶ 14 & n.3 (2014). Here, the appellant submitted two letters from OPM. Initial Appeal File (IAF), Tab 6. The first was an initial decision from OPM dated March 16, 2023, which notified him that OPM had determined that he did not currently meet the requirements for a deferred retirement, but that he would meet the requirements at age 62. Id. at 2. This letter further stated, “If you feel this decision is incorrect, you may request reconsideration by following the instructions on the enclosed form, RI 38-47.” Id. The second letter, dated May 5, 2023, notified the appellant that OPM had recomputed his annuity under FERS, and it specifically referenced an enclosed letter – not provided by the appellant – that provided further options. Id. at 3. This letter did not state that it was a final or2 NOTICE OF APPEAL RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the 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). reconsideration decision, nor did it advise the appellant of his right to file a Board appeal. Id. It is not clear from this record whether the appellant sought reconsideration of OPM’s March 16, 2023 denial of his application for a deferred annuity. If not, he must do so before filing a Board appeal. 5 C.F.R. § 841.305(b). The appellant may file a new Board appeal if, and when, OPM issues a final decision denying his application. 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case, and 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 on4 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5 other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (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. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Gonzalez_Ramiro_J_DE-844E-23-0220-I-1_Final_Order.pdf	2024-10-07	RAMIRO J. GONZALEZ v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DE-844E-23-0220-I-1, October 7, 2024	DE-844E-23-0220-I-1	NP
447	https://www.mspb.gov/decisions/nonprecedential/Pencille_TravisCH-844E-21-0020-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD TRAVIS PENCILLE, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER CH-844E-21-0020-I-1 DATE: October 7, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Andrew Henson , Esquire, Decatur, Georgia, for the appellant. Sherri McCall , Washington, D.C., for the agency. BEFORE Cathy A. Harris Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which affirmed the reconsideration decision of the Office of Personnel Management (OPM) denying his application for disability retirement benefits under the Federal Employees’ Retirement System (FERS). 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 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). this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). BACKGROUND The appellant resigned from his position as a Cook Supervisor with the Bureau of Prisons on June 18, 2019, after approximately 7 years of Federal service. Initial Appeal File (IAF), Tab 9 at 26, 74-75. The appellant’s job duties included supervision and training of inmates assigned to food service tasks, maintaining security of the assigned work area, and oversight of the receipt, storage, and issuance of food service items. Id. at 26-27, 63-67. In his application for disability retirement benefits, dated April 12, 2020, the appellant described his conditions as adjustment disorder with mixed anxiety and depressed mood and post-traumatic stress disorder (PTSD). Id. at 24-27. He stated that he has been unable to perform his job duties since January 2018 due to his symptoms of “emotional numbing, an inability to focus, depressed mood, and irritability directly caused by [his] job.” Id. at 26. OPM denied the appellant’s application for disability retirement benefits on July 6, 2020. Id. at 12-17. The appellant requested reconsideration and submitted additional medical documentation, and2 on September 15, 2020, OPM issued a reconsideration decision affirming its denial of benefits. Id. at 4-7. The appellant timely filed a Board appeal. IAF, Tab 1. Though he initially requested a hearing, he later withdrew his request. IAF, Tab 10. Accordingly, the administrative judge issued an initial decision based on the written record. IAF, Tab 18, Initial Decision (ID). The initial decision affirmed OPM’s denial of disability retirement benefits, finding that the appellant failed to meet his burden to show that he became disabled while in a position subject to FERS, resulting in deficient performance, conduct, or attendance, or that his medical conditions were incompatible with either useful and efficient service or retention in his position. ID at 10. The administrative judge further found that the appellant failed to establish that he had a medical condition that was expected to last 1 year or more following the application date for disability retirement benefits, and that accommodation of his condition would be unreasonable. ID at 10-12. The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. OPM has not filed a response. DISCUSSION OF ARGUMENTS ON REVIEW To be eligible for disability retirement under FERS, an employee must show: (1) he completed at least 18 months of creditable civilian service, (2) while employed in a position subject to FERS, he became disabled because of a medical condition, resulting in a deficiency in performance, conduct or attendance, or, if there is no such deficiency, the disabling medical condition is incompatible with either useful and efficient service or retention in the position, (3) the disabling medical condition is expected to continue for at least 1 year from the date that the application for disability retirement benefits was filed, (4) accommodation of the disabling medical condition in the position must be unreasonable, and (5) he did not decline a reasonable offer of reassignment to a vacant position. 5 U.S.C. § 8451(a); see Thorne v. Office of Personnel3 Management, 105 M.S.P.R. 171, ¶ 5 (2007). All elements must be met to demonstrate eligibility for disability retirement benefits. 5 C.F.R. § 844.103. The Board has held that there are two ways to meet the statutory requirement that the individual “be unable, because of disease or injury, to render useful and efficient service in the employee’s position”; namely, by showing that the medical condition (1) caused a deficiency in performance, attendance, or conduct or (2) is incompatible with useful and efficient service or retention in the position. Henderson v. Office of Personnel Management , 117 M.S.P.R. 313, ¶ 16 (2012); see 5 U.S.C. § 8451(a)(1)(B); 5 C.F.R. § 844.103(a)(2); see also Jackson v. Office of Personnel Management , 118 M.S.P.R. 6, ¶ 7 (2012) (finding that the standard is the same under both the Civil Service Retirement System and FERS). Under the first method, an individual can establish entitlement by showing that the medical condition affects his ability to perform specific work requirements, prevented him from being regular in attendance, or caused him to act inappropriately. Henderson, 117 M.S.P.R. 313, ¶ 16. Under the second method, an individual can establish entitlement by showing that the medical condition is inconsistent with working in general, working in a particular line of work, or working in a particular type of setting. Id. A determination of disability is based on objective clinical findings, diagnoses and medical opinions, subjective evidence of pain and disability, and evidence showing the effect of the individual’s condition on his ability to perform the duties of his position. Id., ¶ 19. The ultimate question, based on all relevant evidence, is: do the individual’s medical impairments preclude him from rendering useful and efficient service in his position? Id., ¶ 20. This question must be answered in the affirmative if the totality of the evidence makes that conclusion more likely to be true than not true. Id. It is undisputed that the appellant completed at least 18 months of creditable service. IAF, Tab 9 at 74-75. On review, the appellant asserts that the administrative judge erred in finding that he did not meet the remaining elements4 to establish entitlement to disability retirement benefits. PFR File, Tab 1 at 8 -10. As set forth below, we agree with the administrative judge’s findings on these criteria. We affirm the administrative judge’s finding that the appellant failed to prove that, because of his medical condition, he was unable to render useful and efficient service in his position. In support of his application for disability retirement benefits, the appellant submitted therapy records, two letters from his therapist, and a written narrative describing his conditions as adjustment disorder with mixed anxiety and depressed mood and PTSD. IAF, Tab 9 at 23-61. We agree with the administrative judge’s finding that the record evidence is insufficient to support a finding that the appellant’s conditions caused a deficiency in the appellant’s conduct, performance, or attendance, or were incompatible with useful and efficient service in his position. ID at 11-12; see Henderson, 117 M.S.P.R. 313, ¶ 16. The administrative judge considered both the objective medical evidence and the appellant’s written narrative regarding how his condition impaired his ability to function in the workplace. See Henderson, 117 M.S.P.R. 313, ¶ 19 (describing the evidence that is relevant in determining whether an appellant is entitled to disability retirement); Chavez v. Office of Personnel Management , 6 M.S.P.R. 404, 421-22 (1981) (noting the ultimate determination of disability must be based upon the probative value of all evidence, including objective medical findings, diagnoses and expert medical opinion, and subjective evidence of pain and disability, together with all evidence relating to the effect of the employee’s condition upon his ability to perform his job). She noted that the appellant’s medical records did not contain clinical findings or references to progress notes or tests, and did not include medical letterhead or a signature block. ID at 7. The administrative judge further noted that examination notes did not reflect opinions, other than the appellant’s, that his medical conditions were5 incompatible with useful and efficient service or retention in the Cook Supervisor position. ID at 9. She found that, rather, the examination notes for the period reflected all positive marks for appearance, behavior, speech, affect, thought process, thought contact, insight, consciousness, and orientation. Id. The administrative judge further considered that the signed supervisor’s statement that the appellant submitted as part of his disability retirement application did not document a service deficiency in the appellant’s performance, conduct, or attendance during his employment with the Bureau of Prisons. ID at 5; IAF, Tab 9 at 28-29. She also found that the record evidence was insufficient to establish that the appellant was taking prescribed medication in an attempt to control his adjustment disorder, mixed anxiety, and depressed mood during the relevant time period. ID at 8-9. Finding the medical evidence to be ambiguous at best, she concluded that the appellant failed to establish that he became disabled due to a medical condition, resulting in deficient performance, conduct, or attendance, or that he had a medical condition that was incompatible with useful and efficient service or retention in his position. ID at 10. While the appellant challenges the administrative judge’s weighing of the evidence in his petition for review, he has not identified any factual or legal errors that would warrant a different outcome. PFR File, Tab 1 at 9. We agree with the administrative judge’s finding that the appellant’s medical records were not very persuasive because they were unsupported by medical evidence such as clinical findings and tests. ID at 7, 10; see Tanious v. Office of Personnel Management, 34 M.S.P.R. 107, 111 (1987). Moreover, contrary to the appellant’s assertions on review, neither the medical evidence nor the appellant’s written submissions clearly establish how the appellant’s medical condition affected his ability to perform his job. PFR File, Tab 1 at 5, 8. Rather, they state generally that the appellant experiences numbness, irritability, and an inability to focus in the workplace. IAF, Tab 9 at 26-27, 30-61. For example, the appellant’s written narrative and his therapist’s6 February 4, 2020 statement assert that the appellant is “unable to concentrate on making sure all of [his] supervisee inmates are acting appropriately,” however, neither the appellant nor his therapist explain under what conditions the appellant experiences an inability to concentrate, how often it happens, for how long he is unable to concentrate, or how his medical condition causes his inability to concentrate. Id. at 27, 33. The appellant and his therapist also state that, “[b]ecause of [his] adjustment disorder and PTSD,” the appellant has “feelings of numbness that render [him] unable to properly carry out [his] duties.” Id. We agree with the administrative judge’s finding that, while stress and anxiety could lead to errors in judgment, the therapist did not provide a medical correlation to the appellant’s job duties and the record evidence does not show a deficiency in performance, conduct, or attendance. ID at 11. We find that the administrative judge thoroughly reviewed and analyzed the record, including the appellant’s subjective medical evidence, and we agree with her conclusion that the appellant did not establish that, due to his medical conditions, he had deficient performance, conduct, or attendance, or that his medical conditions were incompatible with either useful and efficient service or retention in his position. ID at 10; see Johnson v. Office of Personnel Management , 43 M.S.P.R. 392, 395-96 (1990), appeal dismissed , 918 F.2d 187 (Fed. Cir. 1990) (Table) (finding that the appellant failed to meet her burden to establish entitlement to disability retirement benefits when the appellant’s supervisor stated her performance was satisfactory and the medical evidence was conclusory and failed to persuasively show why she could not perform her duties). We affirm the administrative judge’s finding that the appellant failed to prove that reasonable accommodation of his condition would have been unreasonable, and we find that the appellant’s remaining assertions do not provide a basis for review. It is undisputed that the appellant did not request a reasonable accommodation from the Bureau of Prisons. IAF, Tab 9 at 29, Tab 17 at 6. On review, the appellant notes that his therapist stated that no accommodations7 would have been possible. PFR File, Tab 1 at 8. The administrative judge considered the therapist’s assertion that accommodation was unreasonable, but found that the therapist’s conclusions were entitled to low probative value for the reasons set forth above. See infra pp. 5-6; ID at 7-11. The appellant’s therapist did not explain her basis for her conclusion that accommodation would have been unreasonable. For example, she did not state what, if any, accommodations were unsuccessful or why the appellant is impaired from performing any position in the Bureau of Prisons, including positions that do not require interaction with inmates. We also note that the therapist’s conclusion is undermined by the appellant’s assertion that he attempted to apply for other jobs “outside of this environment,” but was not selected. IAF, Tab 17 at 6-7. The appellant could have, but did not, request reassignment as a reasonable accommodation. PFR File, Tab 1 at 6-7. We therefore affirm the administrative judge’s finding that the appellant failed to prove that accommodation of his condition would have been unreasonable. We need not consider the appellant’s arguments on review regarding whether his disabling condition was expected to last 1 year or more because he has not met the other elements to prove entitlement to disability retirement benefits, as explained herein. We do not consider the appellant’s arguments regarding alleged errors in OPM’s reconsideration decision because the administrative judge considered the record de novo and made findings as to each of the elements, and therefore did not adopt OPM’s findings. See Cook v. Office of Personnel Management , 31 M.S.P.R. 683, 686 (1986) (stating that, in adjudicating a disability retirement appeal, the Board must consider de novo all relevant evidence presented by both parties). To the extent the appellant argues that the administrative judge improperly considered the appellant’s employment after his resignation from Federal service, we find that this evidence is not material to the issues on review, and even excluding it, the appellant has failed to8 prove that he was disabled from his position as Cook Supervisor. PFR File, Tab 1 at 8. Accordingly, we deny the petition for review and affirm the initial decision. NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most 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: 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.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. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 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. 420 (2017). If you have a representative in this case, and 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 any10 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s11 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 12 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.13	Pencille_TravisCH-844E-21-0020-I-1_Final_Order.pdf	2024-10-07	TRAVIS PENCILLE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-844E-21-0020-I-1, October 7, 2024	CH-844E-21-0020-I-1	NP
448	https://www.mspb.gov/decisions/nonprecedential/Stroud_LeffieAT-0841-20-0129-I-2_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LEFFIE STROUD, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency, and FAYE STROUD, Intervenor.DOCKET NUMBER AT-0841-20-0129-I-2 DATE: October 4, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Leffie Stroud , Memphis, Tennessee, pro se. Carla Robinson , Washington, D.C., for the agency. Katrice Feild , Esquire, Memphis, Tennessee, for the intervenor. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman Henry J. Kerner , 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). FINAL ORDER The appellant has filed a petition for review of the initial decision, which affirmed the final decision of the Office of Personnel Management (OPM) appointing his wife as representative payee for his Civil Service Retirement System annuity benefits. On petition for review, the appellant does not provide any argument regarding his wife’s appointment; rather, he challenges a September 3, 2019 order issued by the Probate Court of Shelby County, Tennessee, which named his wife as his conservator. Stroud v. Office of Personnel Management , MSPB Docket No. AT-0841-20-0129-I-2, Petition for Review (PFR) File, Tab 7 at 3; Stroud v. Office of Personnel Management , MSPB Docket No. AT-0841-20-0129-I-1, Initial Appeal File, Tab 5 at 13-17.2 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). After fully 2 With his petition for review, the appellant provides additional documents, to include filings regarding his wife’s conservatorship and medical billing statements. PFR File, Tab 1 at 2-20. The appellant provides no explanation as to why he did not submit this evidence, all of which predates the initial decision, to the administrative judge. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980) (finding that the Board generally will not consider evidence submitted for the first time with the petition for review absent a showing that it was unavailable before the record was closed despite the party’s due diligence); 5 C.F.R. § 1201.115(d). Moreover, the documents are not material to the outcome of this appeal. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (stating that the Board will not grant a petition for review based on new evidence absent a showing that it is of sufficient weight to warrant an outcome different from that of the initial decision).2 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 RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. 3 Although we affirm OPM’s designation of the intervenor as representative payee for the appellant’s annuity benefits, that designation is not necessarily permanent. Following the issuance of the initial decision, OPM issued regulations that specifically address, among other things, “[w]hen representative payments will be stopped.” 5 C.F.R. § 849.602. To the extent the appellant believes he no longer requires a representative payee, the regulations provide a mechanism by which he can provide information to OPM to demonstrate that he is “mentally and physically able to manage or direct the management of benefit payments.” Id. 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 you4 receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and 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. 5 If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, 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 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Stroud_LeffieAT-0841-20-0129-I-2_Final_Order.pdf	2024-10-04	LEFFIE STROUD v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0841-20-0129-I-2, October 4, 2024	AT-0841-20-0129-I-2	NP
449	https://www.mspb.gov/decisions/nonprecedential/VanWagner_James_R_NY-3443-21-0159-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JAMES R. VANWAGNER, Appellant, v. DEPARTMENT OF THE AIR FORCE, Agency.DOCKET NUMBER NY-3443-21-0159-I-1 DATE: October 4, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 James R. VanWagner , Virginia Beach, Virginia, pro se. Paul Clawson , Chicopee, Massachusetts, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his nonselection appeal for lack of jurisdiction. On petition for review, the appellant argues that his appeal was misunderstood below and reiterates that the agency engaged in prohibited personnel practices in the hiring process. Petition for Review (PFR) File, Tab 1. Generally, we grant petitions such as this 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). The administrative judge correctly dismissed the appeal for lack of jurisdiction. Initial Appeal File (IAF), Tab 7, Initial Decision (ID) at 1-3. It is well settled that an unsuccessful candidate for a Federal civil service position generally has no right to appeal his nonselection to the Board.2 Kazan v. Department of Justice , 112 M.S.P.R. 390, ¶ 6 (2009); see Ellison v. Merit Systems Protection Board , 7 F.3d 1031, 1034 (Fed. Cir. 1993). Regarding the appellant’s claims that the agency engaged in prohibited personnel practices in violation of 5 U.S.C. § 2302(b)(4) and (5) in the hiring process, the Board has held that prohibited personnel practices under 5 U.S.C. § 2302(b) are not an independent source of Board jurisdiction and that, absent an otherwise appealable action, it lacks jurisdiction to hear those claims. See Pridgen, 117 M.S.P.R. 665, ¶ 7; Wren v. Department of the Army , 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867, 871-73 2 The Board has limited jurisdiction to consider nonselection claims under certain circumstances, such as when the claim is within the context of an individual right of action appeal concerning whistleblower reprisal, or when it is within the context of a Uniformed Services Employment and Reemployment Rights Act or Veterans Employment Opportunities Act (VEOA) appeal. See Becker v. Department of Veterans Affairs, 107 M.S.P.R. 327, ¶ 5 (2007). The appellant has not raised any of these claims.2 (D.C. Cir. 1982). Accordingly, the appellant has not raised a nonfrivolous allegation of Board jurisdiction that would entitle him to a jurisdictional hearing. See Coleman v. Department of the Army , 106 M.S.P.R. 436, ¶ 9 (2007). Based on the foregoing, we affirm the initial decision.3 NOTICE OF APPEAL RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. 3 To the extent the initial decision contains minor factual errors regarding the date the appellant filed his appeal and the timeliness of his response to a show cause order, such errors do not relate to the question of jurisdiction and, therefore, have not prejudiced the appellant’s substantive rights. As such, these errors do not provide a basis to disturb the initial decision. See 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). 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 you4 receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and 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. 5 If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, 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 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	VanWagner_James_R_NY-3443-21-0159-I-1_Final_Order.pdf	2024-10-04	JAMES R. VANWAGNER v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. NY-3443-21-0159-I-1, October 4, 2024	NY-3443-21-0159-I-1	NP
450	https://www.mspb.gov/decisions/nonprecedential/Tate_Robert_T_SF-0752-19-0692-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ROBERT TATE, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER SF-0752-19-0692-I-1 DATE: October 3. 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Claire Cooke , Esquire, and Tyler J. Sroufe , Esquire, Dallas, Texas, for the appellant. Richard Saviet , Fort Belvoir, Virginia, for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman Henry J. Kerner , Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which affirmed his 60-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 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). 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). On review, the appellant argues that he was entitled to be represented by an attorney during the Office of Inspector General (OIG) investigation into the allegations of time and attendance abuse. Petition for Review (PFR) File, Tab 1 at 3. However, the Board has held that the right to counsel is limited to criminal proceedings, and a Federal employee has no right to counsel in an administrative investigation by his employer unless the investigation could result in criminal prosecution and the interrogation took place while the employee was in custody. Chisolm v. U.S. Postal Service , 7 M.S.P.R. 116, 120 (1981); Ashford v. Department of Justice , 6 M.S.P.R. 458, 392 (1981); see Torain v. Smithsonian Institution, 465 F. App’x 945, 948 (Fed. Cir. 2012) (finding that a Federal employee involved in an employment dispute is not entitled to counsel when the employee is not implicated in any crime or subject to a criminal investigation).2 Here, a form signed by the appellant prior to his OIG investigative interview specifically stated that the appellant’s answers could be used “in the course of civil or administrative proceedings” and that the appellant’s answers could not be used in a criminal proceeding unless he knowingly provided false information. 2 The Board may follow a nonprecedential decision of the United States Court of Appeals for the Federal Circuit when it finds its reasoning persuasive. Morris v. Department of the Navy , 123 M.S.P.R. 662, ¶ 13 n.9 (2016).2 Initial Appeal File (IAF), Tab 5 at 17. Nor is there any suggestion in the record that the appellant was in custody at the time of the interview. Thus, the appellant was not entitled to counsel during the OIG interview. The appellant cites a provision of the Administrative Procedure Act (APA) in support of his claim that he was entitled to counsel. PFR File, Tab 1 at 3. The provision he cites, 5 U.S.C. § 555(b), provides, in pertinent part, that a person compelled to appear before an agency or a representative of an agency is entitled to be accompanied and represented by counsel and that “[a] party is entitled to appear in person or by or with counsel or other duly qualified representative in an agency proceeding.” An “agency proceeding” is defined exclusively as rule-making, adjudication, and licensing. 5 U.S.C. § 551(12). The appellant has not shown that he was compelled to appear before the OIG Special Agent. That he could have faced an agency disciplinary action for refusing to cooperate with the investigation does not alter that fact. See Weston v. Department of Housing & Urban Development , 724 F.2d 943, 947-48 (Fed. Cir. 1983) (finding that an employee can be removed for refusing to cooperate in an agency investigation if, among other things, the employee is informed that information obtained from the employee will not be used in a criminal proceeding against him). Moreover, an agency investigation into possible employee misconduct does not constitute an “agency proceeding” as that term is defined in the APA. 5 U.S.C. § 551(12). Nor has the appellant cited to an agency regulation or policy or an applicable collective bargaining agreement provision setting forth a right to counsel in an OIG investigative interview. Thus, we find that the appellant has not shown that he was improperly denied the right to representation by counsel during the OIG investigation. Additionally, the appellant reiterates the request he made below for an audio recording or a transcript of his interview with the OIG Special Agent. PFR File, Tab 1 at 3-5. According to the appellant, the recording or transcript would corroborate his argument concerning his request for an attorney, show that3 the agency misinterpreted his statement about the amount of time he worked, and show that the OIG investigator lied. Id. An administrative judge has wide discretion to exclude evidence and witnesses when it has not been shown that such evidence and testimony would be relevant, material, and nonrepetitious. Fox v. Department of the Army , 120 M.S.P.R. 529, ¶ 42 (2014); see 5 C.F.R. § 1201.41(b)(10). Furthermore, to obtain reversal of an initial decision on the ground that the administrative judge abused her discretion in excluding evidence, the petitioning party must show on review that relevant evidence, which could have affected the outcome, was disallowed. Sanders v. Social Security Administration, 114 M.S.P.R. 487, ¶ 10 (2010). The appellant has not shown that the evidence he sought would affect the outcome of this appeal.3 As stated above, the appellant has not provided any legal basis for his claim that he was entitled to counsel during an administrative investigation. Thus, whether he requested counsel and that request was denied or he never requested counsel is immaterial. In addition, regardless of the appellant’s claims about his hours worked, it is clear that he claimed many more hours worked than he actually did, and such behavior would constitute conduct unbecoming a Federal employee. Finally, the administrative judge considered the appellant’s testimony that the OIG Special Agent erred in his summary of the investigative interview and found the assertion not credible. IAF, Tab 34, Initial Decision (ID) at 7. Thus, we find that the administrative judge has not abused her discretion. In sum, we discern no basis to disturb the administrative judge’s determination that the agency’s penalty of a 60-day suspension promoted the efficiency of the service and was reasonable.4 ID at 18-20. 3 In addition, it is not clear how the transcript the appellant seeks would be materially different from the sworn statement he signed, which appears to be a transcript of the investigative interview. IAF, Tab 5 at 18-22. 4 Regarding the appellant’s disability discrimination claim, the administrative judge cited the mixed-motive standard as set forth in Southerland v. Department of Defense , 119 M.S.P.R. 566, ¶ 23 (2013). ID at 16-17. After issuance of the initial decision in this appeal, the Board addressed the proper analytical framework in status-based4 NOTICE OF APPEAL RIGHTS5 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the 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). discrimination claims in Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 21-22. Because Pridgen sets forth the proper analytical framework after an employee has shown that unlawful discrimination was a motivating factor in the agency action, and here the administrative judge found that the appellant failed to show that his disability was a motivating factor in the agency action, Pridgen has no effect on this appeal. Id.; see ID at 17. 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 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case, and 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 on6 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or7 other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.9	Tate_Robert_T_SF-0752-19-0692-I-1_Final_Order.pdf	Date not found	null	SF-0752-19-0692-I-1	NP
451	https://www.mspb.gov/decisions/nonprecedential/LeCompte_Randy_C_DC-1221-20-0765-W-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD RANDY CARROLL LECOMPTE, Appellant, v. DEPARTMENT OF STATE, Agency.DOCKET NUMBER DC-1221-20-0765-W-1 DATE: October 3, 2024 THIS ORDER IS NONPRECEDENTIAL1 Randy Carroll LeCompte , Castroville, Texas, pro se. Camille V’Estres , Christine Hulsizer , and Marianne Perciaccante , Washington, D.C., for the agency. Gerard Riddick , Clarksburg, Maryland, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member* *Member Kerner recused himself and did not participate in the adjudication of this appeal. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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). REMAND ORDER ¶1The 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, VACATE the initial decision, FIND that the appellant met his jurisdictional burden for some claims, and REMAND the case to the regional office for further adjudication in accordance with this Remand Order. BACKGROUND ¶2The appellant accepted a temporary appointment in 2011 as a Program Manager, Contracting Officer’s Representative, within the agency’s Near Eastern Affairs (NEA) Bureau, stationed in Iraq. Initial Appeal File (IAF), Tab 1 at 11, 15. In 2013, the agency converted his employment to a limited non-career appointment. Id. at 11, 15-16. In mid-2014, he left Iraq for what was planned to be a brief rest, but the agency subsequently instructed him to report to Washington, D.C., instead of returning to Iraq. IAF, Tab 1 at 16, Tab 6 at 18. He worked from there until late 2014, at which point the agency assigned him to Frankfurt, Germany, to oversee a newly established Contract Management Office. IAF, Tab 1 at 11, 16, Tab 6 at 18. The office was intended to provide oversight of high-value contracts throughout the Near Eastern and South-Central Asian Affairs region (NEA -SCA). IAF, Tab 1 at 16. During his time in Germany, the appellant described himself as serving as the Director of his office until 2017, when the agency restructured and abolished his position. Id. at 12. ¶3In April 2017, the appellant filed a complaint with the Office of Special Counsel (OSC), alleging whistleblower reprisal. IAF, Tab 1 at 21-29. He made a more detailed follow-up submission to OSC in January 2018. IAF, Tab 6 at 16-31. In May 2020, OSC sent him a closeout letter, indicating that it would not take further action on the matter and informing the appellant of how he could2 seek corrective action with the Board. IAF, Tab 1 at 30-32. The appellant subsequently filed this IRA appeal. ¶4The administrative judge issued an order, explaining the Board’s jurisdictional limitations, IAF, Tab 3 at 1-6, and instructing the appellant to provide a list of specific information for purposes of meeting his jurisdictional burden, id. at 7-8. In particular, the administrative judge ordered the appellant to file a statement, accompanied by evidence, listing the following: (1) his protected disclosures or activities; (2) the dates he made the disclosures or engaged in the activities; (3) the individual to whom he made any disclosures; (4) why his belief in the truth of any disclosures was reasonable; (5) the actions the agency took or failed to take, or threatened to take or fail to take, against him because of his disclosures or activities; (6) why he believes a disclosure or activity, or a perception of such a disclosure or activity, was a contributing factor to the actions; and (7) the matters he raised in his OSC complaint and any amendments. Id. at 7. The appellant provided a narrative response, IAF, Tab 6 at 4-7, along with several pieces of evidence, id. at 11-53, including his January 2018 submission to OSC, id. at 16-31. The appellant also submitted several additional pleadings, containing more than 1,000 pages of evidence, without any significant explanation of how the evidence met his jurisdictional burden. IAF, Tabs 11-18. ¶5The agency filed a motion to dismiss for lack of jurisdiction. IAF, Tab 19. Among other things, the agency argued that the appellant had not complied with the specific requirements of the administrative judge’s order—he had instead submitted voluminous evidence without contextualizing the same under the framework of Board jurisdiction. Id. at 6-7 & n.2. The agency further argued that, even when construed liberally, the appellant’s pleadings did not satisfy his jurisdictional burden. Id. at 8-17. ¶6After the agency’s motion to dismiss, the appellant referred to his pro se status and unfamiliarity with Board proceedings, while requesting a conference.3 IAF, Tab 20 at 4. The administrative judge held a conference, in which he explained that he would soon rule on jurisdiction, based upon the written record. IAF, Tab 22. ¶7In an initial decision, the administrative judge dismissed the appeal for lack of jurisdiction. He first found that the appellant had exhausted his remedy before OSC regarding his not being allowed to return to Iraq in 2014; his having suffered delays regarding his employee evaluation reports (EERs); problems with his wife’s medical evacuation; and the agency’s refusal to extend his appointment, resulting in his alleged involuntary separation from the agency. ID at 4. The administrative judge then found that, even if the alleged whistleblowing was protected, the appellant failed to nonfrivolously allege that this motivated or contributed to the personnel actions acknowledged by OSC. ID at 4-8. The administrative judge further explained that the appellant described numerous people involved in various decisions, suggesting that they conspired to retaliate against him, but that his claims, without more, amounted to mere speculation. ID at 7-9. He also explained that the appellant’s claim that everyone knew he was a whistleblower did not amount to a nonfrivolous allegation of a causal connection between his disclosures and the agency’s decision to take or not to take a personnel action against him. ID at 10. The administrative judge concluded, therefore, that the Board lacked jurisdiction over the appeal. ID at 1, 10-11. ¶8The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has filed a response, PFR File, Tab 3, to which the appellant has replied, PFR File, Tab 4. DISCUSSION OF ARGUMENTS ON REVIEW ¶9As an initial matter, we agree with the administrative judge’s overarching conclusion that the appellant’s pleadings below are difficult to reconcile with his jurisdictional burden. E.g., IAF, Tabs 6, 11-18. Additionally, his petition for review contains extensive allegations about his alleged whistleblowing and4 reprisal, without explaining in any detail why the initial decision was incorrect. PFR File, Tab 1 at 4-32. His petition only briefly mentions the administrative judge or the initial decision, and it cites almost nothing from the record below. See 5 C.F.R. § 1201.114(b) (providing that a petition for review must state a party’s objections to the initial decision, including all of the party’s legal and factual arguments, and must be supported by specific references to the record and any applicable laws or regulations). ¶10Nonetheless, the Board will construe a pro se appellant’s claims liberally because a pro se appellant is not expected to plead the issues with the same precision as would be expected of an attorney. Farooq v. Corporation for National and Community Service , 109 M.S.P.R. 73, ¶ 11 (2008). More importantly, the administrative judge seemingly overlooked a key document when he concluded that the appellant failed to meet his jurisdictional burden. That document, which is not cited or referenced in the initial decision, is the appellant’s January 2018 follow-up submission to OSC. Compare ID at 4-11, with IAF, Tab 6 at 16-31. This document best explains his allegations of whistleblower reprisal, while also serving as key evidence for the exhaustion element of his jurisdictional burden. IAF, Tab 6 at 16-31. As further detailed below, this January 2018 document sufficed to establish jurisdiction over some of his claims and therefore requires that we remand this IRA appeal for further adjudication. The appellant proved that he exhausted numerous claims with OSC. ¶11Under 5 U.S.C. § 1214(a)(3), to establish Board jurisdiction over an IRA appeal, an appellant must prove by preponderant evidence that he exhausted his administrative remedies with OSC before seeking corrective action from the Board. Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 10. The substantive requirements of exhaustion are met when an appellant has provided OSC with a sufficient basis to pursue an investigation. Id. The purpose of the exhaustion requirement is to give OSC the opportunity to take corrective action5 before involving the Board in the case. Id. Thus, the Board’s jurisdiction in an IRA appeal is limited to those issues that have been raised with OSC. Id. An appellant, however, may give a more detailed account of the whistleblowing or protected activity before the Board than was given to OSC. Id. ¶12The appellant submitted with his initial Board appeal his OSC complaint from April 2017. IAF, Tab 1 at 21-29. It included general allegations that the appellant made “protected disclosures concerning waste and mismanagement within the Near Eastern Affairs (NEA) Region to the Middle East Regional Office (MERO).” Id. at 24. It also generally alludes to some disclosures to a local Office of Inspector General (OIG) along with various wrongdoing as it relates to a requested extension of his tour with the agency and his wife’s medical treatment. Id. at 24-25, 27. ¶13The appellant provided a far more extensive set of allegations in his January 2018 follow-up submission to OSC. IAF, Tab 6 at 16-31. He detailed five sets of disclosures and the alleged reprisal that followed. ¶14In his first set of disclosures and reprisal, the appellant described a June 2014 disclosure concerning the use of jet fuel in Baghdad, at a cost of approximately $10,000 per day more than the diesel fuel that was in current use. Id. at 16-17. He also described a disclosure, in July 2014, as part of a risk assessment, that included a wide range of alleged wrongdoing ranging from unethical relationships between Government officials and contractors to violations of Governmental contracts and insufficient medical personnel. Id. at 17. According to the appellant, the retaliation he suffered as a result of this first set of disclosures included a change in his duty station from Iraq to Washington, D.C., and then Germany; his Washington, D.C. supervisor’s failure to complete his EER in a timely manner; the denial of necessary resources to succeed in his position while in Germany; the denial of overtime pay that was due to him; another instance of an EER not being completed in a timely manner; an investigation of his operation in Germany by a consultant; a follow-up6 investigation by a special management advisor; and a denial of requested resources. Id. at 18-21. All of these alleged acts of reprisal occurred between the period just weeks after his disclosures and May 2016. Id. ¶15In his second set of disclosures and reprisal, the appellant described December 2016 reports he made to the Director of the MERO OIG. According to the appellant, these reports generally involved what he perceived to be mismanagement as it related to work between his office in Germany and coverage for Iraq, along with the improper selections of unqualified individuals for vacant positions in the Germany office. Id. at 21. The appellant alleged that, soon after an OIG report that followed, the agency retaliated by not extending his tour in Germany, as it had previously planned to do. Id. at 22. ¶16In his third set of disclosures and reprisal, the appellant described meeting with the agency’s OIG again, in February 2017, to discuss contract problems involving food services in Iraq as it related to costs and food safety. Id. at 22. Soon after, he alleges that the agency denied benefits to him and his wife regarding her medical care, which should have been authorized under agency policy. Id. at 23-24. The agency also implemented a new charter for the Germany office, which he describes as enabling the eventual abolition of the appellant’s position there. Id. at 25. ¶17In his fourth set of disclosures and reprisal, the appellant described an April 2017 letter to the Secretary of State in which he identified ways in which the agency could save more than a billion dollars per year in Iraq. Id. He further described having filed his initial OSC complaint at the same time. Id. According to the appellant, he also contacted the agency’s OIG once more, this time to express concerns about a particular contract. Id. at 26. After these disclosures, the appellant asserted that the agency counseled him about a backlog of invoices, failed to timely complete yet another EER, and conducted an investigation of the Germany office. Id. at 26-27.7 ¶18In his fifth and final set of disclosures and reprisal, the appellant asserted that he sent another letter to the Secretary of State, in June 2017, this time concerning a culture of corruption and improper efforts to circumvent a hiring freeze. Id. at 27. By June 2017, the appellant also asserted that he had informed “all NEA-SCA management, Frankfurt Consulate, and Acquisition Management personnel” that he was a whistleblower and had filed a reprisal claim with OSC. Id. at 27-28. Subsequently, in August 2017, the appellant stated that he was removed from the Director position in the Germany office, his tour extension request was denied, his position was abolished, he was involuntarily separated2 from the agency, and he was denied various benefits. Id. at 28-30. ¶19OSC’s May 2020 close-out letter described allegations consistent with those recounted above. IAF, Tab 1 at 30-32. This included ones about the voluntariness of the appellant’s separation in 2017, his not being allowed to return to Iraq in 2014, the medical treatment and benefits associated with his wife, and his delayed EERs. Id. For all the alleged whistleblowing and reprisal described above, we find that the appellant met the exhaustion element of his jurisdictional burden. Of the exhausted claims, the appellant nonfrivolously alleged that he engaged in at least some protected whistleblowing that was a contributing factor to at least some personnel actions. ¶20In addition to exhausting remedies with OSC, to establish Board jurisdiction over an IRA appeal, an appellant must make nonfrivolous3 allegations that: (1) he made a protected whistleblowing disclosure under 5 U.S.C. § 2302(b)(8) or engaged in protected whistleblowing activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or activity was a 2 The circumstances surrounding his separation are not entirely clear to us, but the appellant’s description suggests that he may have requested curtailment of his tour before later attempting to rescind that request, which the agency denied. Id. at 29. 3 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s); see Hessami v. Merit Systems Protection Board , 979 F.3d 1362, 1368 (Fed. Cir. 2020). 8 contributing factor in the agency’s decision to take or fail to take, or threaten to take or fail to take, a personnel action as defined by 5 U.S.C. § 2302(a)(2)(A). 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Chambers, 2022 MSPB 8, ¶ 14; Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016); 5 C.F.R. § 1201.57(a)(1), (b), (c). In cases involving multiple alleged protected disclosures and multiple alleged personnel actions, an appellant establishes the Board’s jurisdiction over his IRA appeal when he makes a nonfrivolous allegation that at least one alleged personnel action was taken in reprisal for at least one alleged protected disclosure or activity. Skarada v. Department of Veterans Affairs, 2022 MSPB 17, ¶ 13; Baldwin v. Department of Veterans Affairs , 113 M.S.P.R. 469, ¶ 6 (2010). ¶21A protected disclosure is one which the employee “reasonably believes evidences: (i) any violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” 5 U.S.C. § 2302(b)(8). The proper test for determining whether an employee had a reasonable belief that his disclosure was protected is whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the disclosure evidenced one of the circumstances described in 5 U.S.C. § 2302(b)(8). Cooper v. Department of Veterans Affairs , 2023 MSPB 24, ¶ 14. The test for protected status is not the truth of the matter disclosed but whether it was reasonably believed. Id. Also relevant to the allegations in this appeal, disclosures to an OIG or the OSC are protected under section 2302(b)(9)(C), regardless of content, as long as the disclosure is made in accordance with applicable provisions of law. Fisher v. Department of the Interior, 2023 MSPB 11, ¶ 8. ¶22To satisfy the contributing factor criterion at the jurisdictional stage in an IRA appeal, an appellant need only raise a nonfrivolous allegation that protected whistleblowing was one factor that tended to affect the personnel action in any9 way. Abernathy v. Department of the Army , 2022 MSPB 37, ¶ 15. One way to establish this criterion is the knowledge/timing test, under which an employee may nonfrivolously allege that the disclosure was a contributing factor in a personnel action through circumstantial evidence, such as evidence that the official taking the personnel action knew of the disclosure and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action. Id. Alternatively, the Board will consider other evidence, such as evidence pertaining to the strength or weakness of the agency’s reasons for taking the personnel action, whether the whistleblowing was personally directed at the proposing or deciding officials, and whether these individuals had a desire or motive to retaliate against the appellant. Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 15 (2012). ¶23The administrative judge found that, even if he assumed that the appellant engaged in protected whistleblowing, the appellant failed to nonfrivolously allege that this was a contributing factor in any covered personnel action. ID at 10. We disagree because the January 2018 letter to OSC, which the administrative judge seemingly did not consider, contained the requisite nonfrivolous allegations supporting some of his claims. ¶24First, we find that the appellant presented nonfrivolous allegations that his first set of disclosures, i.e., the June 2014 disclosure about jet fuel and the July 2014 disclosures contained in his risk assessment, were protected. See IAF, Tab 6 at 16-17. As presented, the appellant has nonfrivolously alleged that these were disclosures of gross mismanagement, a gross waste of funds, and violations of law. See, e.g., Salazar v. Department of Veterans Affairs , 2022 MSPB 42, ¶ 24 (defining “gross mismanagement” as more than de minimis wrongdoing or negligence; it is management action or inaction that creates a substantial risk of significant adverse impact on the agency’s ability to accomplish its mission); Lane v. Department of Homeland Security , 115 M.S.P.R. 342, ¶ 31 (2010)10 (explaining that a gross waste of funds is a more than debatable expenditure that is significantly out of proportion to the benefit reasonably expected to accrue to the Government). ¶25We further find that the appellant nonfrivolously alleged that these disclosures were a contributing factor in some personnel actions. In particular, the appellant seemed to allege that the Iraq Management Counselor responsible for the jet fuel expenditure was the recipient of the appellant’s disclosure about the same and bore some responsibility for his changed duty station. IAF, Tab 6 at 17-19. He further asserted that at least two other officials who were recipients of his July 2014 risk assessment, a Contract Specialist and a “Supervisory PMO,” were also involved in his changed duty station. Id. at 17-18. Next, he alleged that a recipient of his July 2014 risk assessment, the “Supervisory PMO” who served as the appellant’s supervisor in Germany, denied him certain overtime pay to which he was entitled.4 Id. at 2, 17, 19. Each of these suffice for purposes of the requisite nonfrivolous allegations of protected disclosures that were a contributing factor in the change of duty stations and denial of overtime pay, which are the covered personnel actions. ¶26To the extent that the appellant described any other alleged personnel actions that followed his first set of disclosures, we do not find that he met his jurisdictional burden. To illustrate, the appellant described how he was subjected to investigations between June and October 2015, after his first set of disclosures, but we cannot find any allegations linking these to his alleged disclosures. Id. at 20. Thus, he has not presented nonfrivolous allegations for the contributing 4 The appellant also appears to argue that his supervisor while the appellant was working in Washington, D.C. was implicated by and a recipient of the July 2014 risk assessment, and then delayed the appellant’s EER soon after. IAF, Tab 6 at 17-18. To the extent the appellant is alleging that the agency delayed this EER and/or subsequent EERs in retaliation for his whistleblowing or protected activity, the Board has found that a delay in issuing a performance evaluation is not a “personnel action” within the definition in the statute. See Reeves v. Department of the Army , 101 M.S.P.R. 337, ¶¶ 10-11 (2005); see also 5 U.S.C. § 2302(a)(2)(A). Thus, we do not further discuss allegations concerning the allegedly delayed EERs.11 factor criterion with respect to the same under the knowledge/timing test or Dorney. See supra ¶ 22. ¶27Turning to his second set of alleged whistleblowing, we once again find that the appellant presented nonfrivolous allegations. This time, he alleged that he made December 2016 disclosures to the agency’s OIG about a waste of funds and mismanagement. IAF, Tab 6 at 21. Regardless of content, this activity is protected under section 2302(b)(9)(C). See Fisher, 2023 MSPB 11, ¶ 8. ¶28According to the appellant, his own management would have inferred that he made these disclosures to OIG after OIG issued its report on the matter because he had previously made the same disclosures directly to management. Id. at 21-22. Accordingly, we find that the appellant nonfrivolously alleged that his second set of disclosures, which was protected activity, was a contributing factor in the decision not to extend his tour, soon thereafter. IAF, Tab 6 at 22. ¶29For his third set of alleged whistleblowing and reprisal, we do not find that the appellant presented the requisite nonfrivolous allegations. See id. at 22-25. Specifically, he has not presented nonfrivolous allegations that his alleged whistleblowing was a contributing factor in any covered personnel action. ¶30To illustrate, much of the reprisal the appellant describes as a result of his third set of disclosures concerned the agency’s handling of his wife’s medical care. Id. at 23-24. But the appellant did not describe any linkage between his alleged whistleblowing and the circumstances surrounding his wife’s medical care, except to note that one followed the other. This alleged proximity in time, without allegations of knowledge, does not suffice for purposes of the knowledge/ timing test, and the appellant has not presented nonfrivolous allegations to satisfy his burden through other means, such as the factors delineated in Dorney. See supra ¶ 22. Separately, the appellant describes how his new supervisor played a role in changing the charter for his Germany office, and how this would ultimately lead to his position being abolished. IAF, Tab 6 at 25. However, it is not apparent from the appellant’s descriptions that this new supervisor had any12 knowledge of the appellant’s alleged whistleblowing for purposes of the knowledge/timing test, and we are again unable to conclude that he met his jurisdictional burden through other means, such as Dorney factors. See supra ¶ 22. Further, the appellant has not nonfrivolously alleged that the decision to update the Germany office’s charter constituted a covered personnel action, since it seemed to have no immediate impact on him. See 5 U.S.C. § 2302(a)(2)(A) (defining covered personnel actions as including, among other things, a significant change in duties, responsibilities, or working conditions). ¶31The appellant’s fourth set of alleged disclosures and reprisal are similarly deficient. He describes disclosures to the Secretary of State, his initial OSC complaint, and more disclosures to OIG. IAF, Tab 6 at 25-26. But the appellant has again presented no allegations linking this to the resulting reprisal he alleged —a counseling session from his supervisor and an investigation about some of the Germany office’s practices. Id. at 26-27. Once more, the proximity in time between the alleged disclosure and the alleged reprisal, without more, does not constitute nonfrivolous allegations of the contributing factor criterion under either the knowledge/timing test or Dorney. See supra, ¶ 22. ¶32Turning to the appellant’s fifth set of alleged whistleblowing and resulting reprisal, we find that the appellant did present sufficient nonfrivolous allegations. The appellant nonfrivolously alleged that he engaged in protected activity by making disclosures to OIG and by filing his initial OSC complaint. IAF, Tab 6 at 27-28; see Fisher, 2023 MSPB 11, ¶ 8. He asserted that, by June 2017, he had advised “all NEA-SCA management, Frankfurt Consulate, and Acquisition Management personnel in writing, face to face or telephonically that he was a [w]histleblower and had filed an OSC case.” Id. at 27-28. Further, the appellant alleged that he was removed from the Director position in Germany and his tour extension request was denied less than two months later. Id. at 28. Accordingly, for those alleged personnel actions, we find that the appellant nonfrivolously13 alleged that his OIG and OSC activity was a contributing factor through the knowledge/timing test. See supra ¶ 22. On remand, the administrative judge should address each of the claims within the Board’s jurisdiction, while being mindful of section 2302(f)(2). ¶33On remand, the administrative judge may adjudicate this appeal in the order he deems most efficient, and our conclusion that the appellant has presented nonfrivolous allegations regarding the existence of at least some protected whistleblowing that was a contributing factor in at least one covered personnel action in no way disposes of the merits of those issues or any others. While adjudicating the case further, the administrative judge should be mindful of whether any of the appellant’s alleged disclosures were made in the normal course of his duties. ¶34Pursuant to 5 U.S.C. § 2302(f)(2), an appellant who makes a disclosure in the normal course of his duties must additionally show that the agency took the action “in reprisal for” his disclosure, and it thereby imposes a slightly higher burden for proving that the disclosure was protected. Salazar, 2022 MSPB 42, ¶ 11. The National Defense Authorization Act for Fiscal Year 2018 amended 5 U.S.C. § 2302(f)(2) to provide that it only applies to employees whose principal job functions are to regularly investigate and disclose wrongdoing and that the amendment is entitled to retroactive effect. Id., ¶¶ 13-21. The potential applicability of 5 U.S.C.§ 2302(f)(2) is not part of the jurisdictional analysis in an IRA appeal and should instead be considered at the merits stage. Williams v. Department of Defense , 2023 MSPB 23, ¶ 12. On remand, the appellant will bear the initial burden of proof. ¶35At the merits stage of this IRA appeal, the appellant must prove by preponderant evidence that he made a protected disclosure under 5 U.S.C. § 2302(b)(8), or engaged in an activity protected by 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and that such disclosure or activity was a contributing factor in an agency’s personnel action. Turner v. Department of14 Agriculture, 2023 MSPB 25, ¶ 12. If the appellant meets that burden, 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 disclosure or activity. Id. ¶36As alluded to in this decision and the initial decision, the appellant’s pleadings to date have been difficult to understand. While we are cognizant of his pro se status, a party whose submissions lack clarity risks being found to have failed to meet his burden of proof. Luecht v. Department of the Navy , 87 M.S.P.R. 297, ¶ 8 (2000). Further, it is not the Board’s obligation to pore through the record or to construe and make sense of allegations based on various parts of a case file.5 Keefer v. Department of Agriculture , 92 M.S.P.R. 476, ¶ 18 n.2 (2002). Accordingly, the appellant is encouraged to carefully follow the administrative judge’s instructions. The appellant is also encouraged to ensure that the arguments and evidence he presents are clear, succinct, and easily understood. This is particularly important in a case such as this, where the appellant has alleged many instances of whistleblowing and many more instances of retaliation. 5 In submitting evidence and argument on remand, the appellant should be aware that it is not the Board’s role to investigate allegations of mismanagement or a waste of funds by another Federal agency. 5 U.S.C. §1204; Bush v. Office of Personnel Management , 91 M.S.P.R. 415, ¶ 11 (2002). As described above, the Board’s focus in an IRA appeal, such as this one, is whether the agency retaliated because of the appellant’s protected disclosures and activities. 15 ORDER ¶37For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.16	LeCompte_Randy_C_DC-1221-20-0765-W-1_Remand_Order.pdf	2024-10-03	RANDY CARROLL LECOMPTE v. DEPARTMENT OF STATE, MSPB Docket No. DC-1221-20-0765-W-1, October 3, 2024	DC-1221-20-0765-W-1	NP
452	https://www.mspb.gov/decisions/nonprecedential/Akerman_MartinDC-0752-22-0376-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MARTIN AKERMAN, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER DC-0752-22-0376-I-1 DATE: October 3, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Martin Akerman , Arlington, Virginia, pro se. Gonzalo Pinacho , Arlington, Virginia, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER ¶1The appellant has filed a September 6, 2022 submission challenging the initial decision, which sustained his indefinite suspension based on the revocation of his security clearance. For the reasons set forth below, we DISMISS WITH PREJUDICE the appellant’s submission based on his repeated failure to file a perfected petition for review that complies with the Board’s regulations. 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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). BACKGROUND ¶2On August 10, 2022, the administrative judge issued an initial decision based on the written record, affirming the appellant’s indefinite suspension. Initial Appeal File, Tab 56, Initial Decision (ID). The administrative judge notified the appellant that the initial decision would become final on September 14, 2022, unless a party filed a petition for review by that date. ID at 14. The administrative judge also informed the parties that, pursuant to 5 C.F.R. § 1201.114(h), the length of a petition for review is limited to 30 pages or 7500 words, whichever is less, and that a request for leave to file a pleading that exceeds such limitations must be received by the Office of the Clerk of the Board at least 3 days before the filing deadline. ID at 16. ¶3The appellant filed a timely request for an extension of the deadline to file a petition for review, which the Acting Clerk of the Board granted until October 14, 2022. Petition for Review (PFR) File, Tabs 1-2. On September 5, 2022, the appellant submitted a “Request for Leave to Exceed Length Limitation for Filing of PFR.” PFR File, Tab 3 at 3. In succession, on September 6, 2022, the Clerk’s Office issued an order denying the appellant’s request for insufficient cause; the appellant filed a renewed request for leave to exceed the length limitation; and the Clerk’s Office issued a second order denying the renewed request on the same basis and reminding the appellant of the Board’s formatting requirements under section 1201.114; however, the appellant subsequently filed a noncompliant petition for review on September 6, 2022.2 PFR File, Tabs 4-7. ¶4In a September 7, 2022 letter, the Clerk’s Office rejected the appellant’s September 6, 2022 submission, deleted it from e-Appeal, and returned it to him by email. PFR File, Tab 7. The letter further explained the specific requirements for filing a perfected petition for review and apprised the appellant that the initial decision will remain the final decision of the Board if he did not file a compliant 2 The appellant’s submission consisted of a single-spaced petition for review, which exceeded the length limit by at least nine pages, and two attachments. PFR File, Tab 7 at 1-2.2 petition for review by October 14, 2022. Id. The appellant then filed two additional noncompliant submissions, which the Clerk’s Office also rejected. PFR File, Tabs 8-9. In a September 13, 2022 letter, the Acting Clerk advised the appellant that he had a final opportunity to perfect his petition for review on or before October 14, 2022, and that, if he failed to do so, the Board may impose appropriate sanctions, including dismissing his petition for review with prejudice. PFR File, Tab 9 at 2-3. After receiving the appellant’s fourth failed attempt to submit a petition for review in compliance with section 1201.114, the Clerk’s Office advised the parties that the matter had been referred to the full Board for consideration and that no additional pleadings should be filed by the parties.3 PFR File, Tabs 10-11. ANALYSIS ¶5Under 5 C.F.R. § 1201.114(h), a petition for review is limited to 30 pages or 7,500 words, whichever is less, and the length limitation is exclusive of any table of contents, table of authorities, attachments, and certificate of service. A request for leave to file a pleading that exceeds the limitations must be received by the Clerk of the Board at least 3 days before the filing deadline and must give the reasons for a waiver as well as the desired length of the pleading. 5 C.F.R. § 1201.114(h). Waivers are granted only in exceptional circumstances. Id. ¶6Litigants before the Board are expected to comply with all orders issued by the Board and to comply with the Board’s regulations. Morris v. Department of the Navy, 123 M.S.P.R. 662, ¶ 13 (2016). The Board’s regulations do not specifically provide what sanctions the Board may impose for a party’s failure to comply with 5 C.F.R. § 1201.114(h); however, it has construed such noncompliance as a failure to prosecute and imposed sanctions accordingly. Id., 3 Consistent with its September 15, 2022 Order, the Clerk’s Office also rejected the appellant’s September 3, 2023 attempt to supplement his purported petition for review and rejected the appellant’s August 30, 2024 request to “transfer” this matter to a U.S. district court. PFR File, Tabs 11, 14-15. 3 ¶¶ 11-14. The Board has found it appropriate to impose the severe sanction of dismissal with prejudice for an appellant’s failure to comply with section 1201.114(h) when it serves the ends of justice and the appellant fails to exercise due diligence or exhibits bad faith in his efforts to comply. Id. ¶7Although notified of the 30-page regulatory limit in the initial decision and despite the Acting Clerk’s clear and repeated directions to comply, the appellant filed a nonconforming petition for review and then failed to perfect his petition on three more occasions. PFR File, Tabs 8-10. The appellant’s submissions, exclusive of attachments, significantly exceeded the limitation.4 PFR File, Tabs 7-9, Tab 10 at 9-44; cf. Sabio v. Department of Veterans Affairs , 124 M.S.P.R. 161, ¶ 12 (2017) (finding the agency’s single -spaced response to the petition for review substantially compliant with section 1201.114(h) because it did not exceed the 7,500 word limit). Initially, the appellant did not offer any explanation for his inability to comply with the Board’s length limitation set forth in 5 C.F.R. § 1201.114. PFR File, Tab 3. In his renewed requests to exceed the page limit, he attributed his noncompliance to his pro se status, his unfamiliarity with legal arguments, and the numerous challenges to the initial decision he was raising. PFR File, Tab 5 at 3, Tab 9 at 2. However, the appellant’s pro se status does not grant him license to flout the Acting Clerk’s instructions. See Morris, 123 M.S.P.R. 662, ¶ 15 (applying Mitchell v. Union Pacific Railroad Company , 501 F.3d 794, 795-96 (7th Cir. 2007) (dismissing, despite his pro se status, the appellant’s appeal for his continued failure to file a rule -compliant brief)). By repeatedly failing to comply with the Board’s regulations and the clear directions 4 The appellant’s last submitted petition for review totaled 105 pages inclusive of attachments, including a 39 -page attachment, labeled “Rejected PFR,” which also challenges the administrative judge’s findings of fact and conclusions of law. PFR File, Tab 10. This part of the appellant’s submission is fairly construed as part of the petition for review. Id. at 55-92; see Morris, 123 M.S.P.R. 662, ¶¶ 7-9 (finding that the sections of the appellant’s submissions, including the table of authorities, were considered as part of the appellant’s petition for review because they all challenged the administrative judge’s findings of fact and conclusions of law and rulings, and otherwise included arguments and analysis on the merits of his appeal).4 provided by the Clerk’s Office, the appellant failed to exercise due diligence. See id., ¶ 14. In light of the appellant’s persistent disregard for and substantial noncompliance with the Board’s regulations and the Acting Clerk’s directions, we find it appropriate to dismiss with prejudice the appellant’s petition for review. ¶8This is the final decision of the Merit Systems Protect Board regarding the dismissal of the appellant’s purported petition for review for failing to comply with the Board’s regulations and the Acting Clerk’s issuances explaining those regulations. The initial decision remains the final decision of the Board regarding the merits of the agency’s action. NOTICE OF APPEAL RIGHTS5 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.5 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 you6 receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and 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: 7 Office of Federal 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 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 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 8 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.9	Akerman_MartinDC-0752-22-0376-I-1_Final_Order.pdf	2024-10-03	MARTIN AKERMAN v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-0752-22-0376-I-1, October 3, 2024	DC-0752-22-0376-I-1	NP
453	https://www.mspb.gov/decisions/nonprecedential/Guerra_Julio__C_SF-0752-23-0214-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JULIO GUERRA, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER SF-0752-23-0214-I-1 DATE: October 3, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Julio Guerra , Kent, Washington, pro se. Holly A. Parr and Nadine D. Scott , Seattle, Washington, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which affirmed his removal under 5 U.S.C. chapter 75 based on the charge of theft. On petition for review, the appellant reraises his arguments below, requests that the Board obtain additional evidence and testimony, and alleges administrative judge 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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). bias or prejudice. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review.2 Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should 2 To the extent that the appellant’s arguments could be interpreted as claims of affirmative defenses that were not addressed in the initial decision, we have considered the factors set forth in Thurman v. U.S. Postal Service , 2022 MSPB 21, ¶¶ 18-26, and conclude that the appellant waived such claims. 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.2 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 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 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. 420 (2017). If you have a representative in this case, and 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: 4 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, 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 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. 5 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.6	Guerra_Julio__C_SF-0752-23-0214-I-1_Final_Order.pdf	2024-10-03	JULIO GUERRA v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0752-23-0214-I-1, October 3, 2024	SF-0752-23-0214-I-1	NP
454	https://www.mspb.gov/decisions/nonprecedential/Owens_AnthonyCH-0752-21-0345-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ANTHONY OWENS, Appellant, v. SOCIAL SECURITY ADMINISTRATION, Agency.DOCKET NUMBER CH-0752-21-0345-I-1 DATE: October 3, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 James Muhammad-Mason , Chicago, Illinois, for the appellant. James Hail and Gina M. Gebhart , Esquire, Chicago, Illinois, for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman Henry J. Kerner , Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his appeal of his termination for lack of jurisdiction because he failed to establish that he was an employee under 5 U.S.C. § 7511(a)(1). On petition for review, the appellant argues, in summary, that his termination was the result of 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). his service-connected disability, which the agency failed to reasonably accommodate. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the 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 2 As an individual appointed under a Veterans’ Recruitment Appointment (VRA), the appellant may appeal his termination to the Board under 5 C.F.R. § 315.806. LeMaster v. Department of Veterans Affairs , 123 M.S.P.R. 453, ¶ 2 n.1 (2016) (explaining that VRA allows the individual to appeal his termination under 5 C.F.R. § 315.806). That regulation provides for the right to appeal to the Board based on allegations that an individual’s termination was taken for partisan political reasons or marital status discrimination, or that his termination was based in whole or in part on conditions arising before his appointment and was not effected in accordance with certain procedural requirements under 5 C.F.R. § 315.805. The appellant has not raised such a claim either below or on review. 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.2 Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at3 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case, and 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,4 and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 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. 115-195,5 review within 60 days of the date of issuance of this decision. 5 U.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. 132 Stat. 1510. 6 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Owens_AnthonyCH-0752-21-0345-I-1_Final_Order.pdf	2024-10-03	ANTHONY OWENS v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. CH-0752-21-0345-I-1, October 3, 2024	CH-0752-21-0345-I-1	NP
455	https://www.mspb.gov/decisions/nonprecedential/Davis_Rosetta_C_SF-0831-21-0306-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ROSETTA C. DAVIS, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER SF-0831-21-0306-I-1 DATE: October 3, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Rosetta C. Davis , Los Angeles, California, pro se. Alison Pastor , Washington, D.C., for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman Henry J. Kerner , Member FINAL ORDER 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) finding that she was not entitled to survivor annuity benefits under the Civil Service Retirement System (CSRS). On petition for review, the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). appellant argues the following: (1) OPM failed to provide her late husband, a Federal retiree, with sufficient information regarding CSRS survivor annuity benefits; (2) the administrative judge failed to properly assess equitable considerations; and (3) she is entitled to survivor annuity benefits regardless of whether her late husband properly elected the same because OPM reduced his monthly annuity benefits during his lifetime. Petition for Review (PFR) File, Tab 1 at 3, 7. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). We discern no basis to disturb the administrative judge’s well-reasoned conclusions that: (1) OPM provided the appellant’s late husband with all statutorily required information regarding the election of CSRS survivor annuity benefits; and (2) equitable considerations do not provide a basis to disturb OPM’s reconsideration decision. Initial Appeal File (IAF), Tab 14, Initial Decision at 8-16; 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 made2 reasoned conclusions); Broughton v. Department of Health & Human Services , 33 M.S.P.R. 357, 359 (1987) (same). The appellant argues for the first time on review that she is entitled to survivor annuity benefits because OPM reduced her late husband’s annuity benefits. PFR File, Tab 1 at 7. To this end, she seemingly asserts that OPM deducted “$450.00 a month” from his lifetime monthly annuity benefits to provide her with survivor annuity benefits. Id. The appellant, however, did not discernably raise this claim before the administrative judge. 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 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); 5 C.F.R. § 1201.115(d). Moreover, the appellant’s assertion is unsupported by the record.2 Thus, a different outcome is not warranted. With her petition for review, the appellant provides, for the first time, two additional documents, i.e., a letter sent to the appellant’s late husband by OPM in October 1996 “regarding [d]irect [d]eposit,” PFR File, Tab 1 at 5, 7, and an undated letter from a purported witness, id. at 6. The Board generally will not consider evidence submitted for the first time with the petition for review absent a showing that it was unavailable before the record was closed despite the party’s due diligence. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d). Here, the appellant provides no explanation for her failure to timely submit this evidence to the administrative judge. Moreover, the information provided in these documents is not material to the outcome of this appeal; indeed, the relevance of the October 1996 letter is unclear, and although the purported witness indicates that he saw the appellant and her late husband complete “forms,” he does not discernably identify the forms that he saw them 2 Indeed, the record reflects that OPM deducted $450.06 from the appellant’s late husband’s CSRS annuity payments for health benefits, not for survivor annuity benefits. IAF, Tab 7 at 44.3 complete. PFR File, Tab 1 at 5-6; see Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (stating that the Board will not grant a petition for review based on new evidence absent a showing that it is of sufficient weight to warrant an outcome different from that of the initial decision). Accordingly, we affirm the initial decision. NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case, and 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 on5 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or6 other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Davis_Rosetta_C_SF-0831-21-0306-I-1_Final_Order.pdf	2024-10-03	ROSETTA C. DAVIS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0831-21-0306-I-1, October 3, 2024	SF-0831-21-0306-I-1	NP
456	https://www.mspb.gov/decisions/nonprecedential/Self_Shayne_A_CH-844E-20-0552-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SHAYNE A. SELF, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER CH-844E-20-0552-I-1 DATE: October 3, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Shayne A. Self , Ashland, Kentucky, pro se. Jo Bell , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed the appeal challenging the reconsideration decision from Office of Personnel Management (OPM) denying the appellant’s application for disability retirement benefits under Federal Employees’ Retirement System because OPM 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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). rescinded its reconsideration decision.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). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision.3 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit 2 OPM rescinded its reconsideration decision to afford itself the opportunity to review the medical documentation the appellant submitted while the appeal was pending before the Board. Initial Appeal File, Tab 23, Tab 25 at 4. 3 If OPM completely rescinds a reconsideration decision, the Board no longer retains jurisdiction over the appeal in which that reconsideration decision was at issue, and the appeal must be dismissed. Glasgow v. Office of Personnel Management , 103 M.S.P.R. 531, ¶ 5 (2006). Thus, because OPM rescinded the reconsideration decision, we do not have jurisdiction over this appeal. IAF, Tab 25 at 4. However, upon receipt of the new reconsideration decision from OPM, the appellant may file another appeal with the appropriate regional office consistent with the Board’s regulations. 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.2 Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at3 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case, and 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,4 and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 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. 115-195,5 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. 132 Stat. 1510. 6 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Self_Shayne_A_CH-844E-20-0552-I-1_Final_Order.pdf	2024-10-03	SHAYNE A. SELF v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-844E-20-0552-I-1, October 3, 2024	CH-844E-20-0552-I-1	NP
457	https://www.mspb.gov/decisions/nonprecedential/Bryant_PatrickNY-0842-20-0233-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD PATRICK BRYANT, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER NY-0842-20-0233-I-1 DATE: October 2, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Patrick Bryant , Selden, New York, pro se. Michael Shipley , Washington, D.C., for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman Henry J. Kerner , Member FINAL ORDER The Office of Personnel Management (OPM) has filed a petition for review of the initial decision, which vacated and remanded its final decision regarding the calculation of the appellant’s Federal Employees’ Retirement System (FERS) disability retirement annuity benefits. For the reasons discussed herein, we 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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). GRANT OPM’s petition for review, VACATE the initial decision, and AFFIRM OPM’s final decision. BACKGROUND On January 7, 2007, OPM approved the appellant’s application for disability retirement under FERS. Bryant v. Office of Personnel Management , MSPB Docket No. NY-0842-20-0233-I-1, Initial Appeal File (IAF), Tab 9 at 6, 19. Thereafter, on September 7, 2010, the appellant was found eligible for social security disability benefits retroactive to January 5, 2007. Bryant v. Office of Personnel Management , MSPB Docket No. NY-0845-14-0268-I-1, Initial Appeal File (0268 IAF), Tab 12 at 17-21. Approximately 3 years later, in October 2013, OPM learned that the appellant had been receiving social security benefits. 0268 IAF, Tab 9 at 35. Accordingly, effective November 1, 2013, OPM began to reduce the appellant’s monthly FERS disability annuity payments to offset his social security benefits.2 Id. at 12. On numerous occasions thereafter, the appellant contacted OPM and inquired as to how it was calculating his monthly FERS disability annuity benefits. E.g., IAF, Tab 12 at 26. On August 13, 2019, OPM issued an initial decision explaining how it had computed the appellant’s monthly benefits. IAF, Tab 9 at 17-18. In this decision, OPM explained that, for the first 12 months following the appellant’s retirement, it had calculated his monthly annuity by first taking 60% of his average salary and dividing it by 12. Id. at 17. It indicated that it had then offset 2 Because the appellant concurrently received social security benefits and FERS disability annuity benefits absent any offset from July 1, 2007, through September 30, 2013, on March 25, 2014, OPM issued a final decision concluding that the appellant had been overpaid in the amount of $81,155.00 and that he was not entitled to a waiver of the overpayment. 0268 IAF, Tab 9 at 6-10. The appellant appealed OPM’s March 25, 2014 final decision to the Board, and on December 9, 2015, the administrative judge assigned to the matter issued an initial decision reversing OPM’s final decision, concluding that the appellant was entitled to a waiver of the overpayment due to financial hardship. Bryant v. Office of Personnel Management , MSPB Docket No. NY- 0845-14-0268-I-1, Initial Decision at 2, 13-19 (Dec. 9, 2015). OPM did not file a petition for review of this initial decision.2 this amount by 100% of the appellant’s monthly social security benefits. Id. OPM explained that, following this initial year, it had calculated the appellant’s monthly annuity by first taking 40% of his average salary and dividing by 12. Id. It had then offset this amount by 60% of the appellant’s monthly social security benefits. Id. The decision referenced, but did not substantively discuss, the application of a cost-of-living adjustment (COLA) to these calculations. Id. at 17-18. The appellant requested reconsideration of OPM’s August 13, 2019 decision, and on July 24, 2020, OPM issued a final decision concluding that the appellant’s “FERS annuity was correctly computed” and that he had received “the correct COLAs applied to [his] monthly annuity.”3 IAF, Tab 9 at 6-8. OPM explained that it did not contact the Social Security Administration (SSA) “to get the COLA amount applied to [an annuitant’s social security] benefit[s],” and instead had applied only the “FERS COLA” in calculating the appellant’s annuity. Id. at 7. On September 4, 2020,4 the appellant appealed OPM’s final decision to the Board, arguing that OPM had miscalculated his FERS annuity benefits from 2017 through 2020 by deliberately applying the incorrect COLA, in violation of 5 C.F.R. § 841.703(e)(3). IAF, Tab 1 at 4-5. 3 The appellant filed a previous appeal with the Board of OPM’s August 19, 2019 decision, which was subsequently dismissed by the administrative judge assigned to the matter for lack of jurisdiction because OPM had not yet issued a final decision. Bryant v. Office of Personnel Management , MSPB Docket No. NY-0845-20-0099-I-1, Initial Decision at 1-2 (Apr. 16, 2020). 4 OPM’s July 24, 2020 final decision explained that the appellant had the right to file a Board appeal within 30 calendar days from the date of its decision, or 30 days from the appellant’s receipt of the decision, whichever was later. IAF, Tab 9 at 8. On his initial appeal form, the appellant indicated that he had not received OPM’s final decision until August 5, 2020. IAF, Tab 1 at 4. He also provided the envelope in which OPM’s final decision was sent, which seemingly indicated that someone had signed for and acknowledged receipt of the same on “8/5/20.” Id. at 12. The agency did not challenge the appellant’s assertion that he did not receive OPM’s decision until August 5, 2020; accordingly, we find that the appellant’s Board appeal was timely filed.3 Following a telephonic hearing on the matter,5 the administrative judge issued an initial decision vacating OPM’s final decision and remanding the matter for recalculation of the appellant’s annuity payments. IAF, Tab 18, Initial Decision (ID) at 1, 3. In so doing, she reasoned that “[g]iven OPM’s statement that it does not obtain from SSA the COLA amount applied to the social security benefit,” OPM had calculated the appellant’s monthly annuity benefits absent all “necessary information.” ID at 3. Accordingly, she ordered OPM to recalculate the appellant’s disability annuity for 2017, 2018, 2019, and 2020, and to issue a new decision. Id. The agency has filed a petition for review, and the appellant has filed a response. Petition for Review (PFR) File, Tabs 1, 3. In its petition, the agency argues that its calculation of the appellant’s annuity benefits comports with applicable statutes, regulations, and case law. PFR File, Tab 1 at 4-25. DISCUSSION OF ARGUMENTS ON REVIEW In the initial decision, the administrative judge did not identify any particular mathematical error with OPM’s calculation of the appellant’s FERS disability retirement annuity benefits; rather, she concluded that OPM’s admission that it had not considered the COLA prescribed by SSA necessarily rendered OPM’s calculations incorrect. ID at 3. We disagree. The computation of a FERS disability annuity is governed by 5 U.S.C. § 8452. Leighton v. Office of Personnel Management , 529 F.3d 1071, 1073 (Fed. Cir. 2008). This statutory provision provides, in relevant part, that for any month in which an annuitant is entitled to both a FERS disability annuity and a disability insurance benefit under section 223 of the Social Security Act, i.e., social security disability benefits, the annuitant’s FERS disability annuity must be reduced by 5 The recording of the March 5, 2021 telephonic hearing was irretrievably lost due to a technical error. Petition for Review File, Tab 4 at 1. However, we find that there are no material facts in dispute and that the dispositive issue in this matter is a question of law. Thus, the loss of the hearing recording is not material to the outcome of this appeal; indeed, neither party has raised any issues associated with the loss of the same.4 the annuitant’s “assumed disability insurance benefit.” 5 U.S.C. § 8452(a)(2)(A). The statute defines “assumed disability insurance benefit” as the appellant’s social security disability insurance benefit as adjusted by 5 U.S.C. § 8462(b), i.e., the FERS COLA. 5 U.S.C. § 8452(a)(2)(B)(i)(I)-(II). Therefore, by the plain language of the statute, an annuitant’s social security benefits must be adjusted by the FERS COLA, and thus, the COLA prescribed by SSA is not relevant to the calculation. Id.; see Consumer Product Safety Commission v. GTE Sylvania, Inc. , 447 U.S. 102, 108 (1980) (stating that under the general rule of statutory construction, when the language of a statute is clear and unambiguous, that language is controlling, absent a clearly expressed legislative intention to the contrary). Therefore, to the extent that the administrative judge agreed with the appellant that OPM violated 5 C.F.R. § 841.703(e)(3) in not considering the COLA prescribed by SSA, such finding is contrary to the plain reading of the statute. ID at 3. Furthermore, although 5 C.F.R. § 841.703(e)(3) provides that “[a]fter the first year [of disability retirement under FERS] both the disability benefit and the social security offset (if any) are increased by COLAs,” the provision does not specify which COLA should be applied to an annuitant’s social security benefits for purposes of a FERS disability annuity computation. However, another regulatory provision, 5 C.F.R. § 844.302, explicitly provides that, in computing the FERS disability annuity for individuals under the age of 62, social security disability insurance benefits shall be “[a]djusted by each cost-of-living increase effective under 5 U.S.C. 8462(b).” 5 C.F.R. § 844.302(a)(3); ID at 3. We therefore disagree with the administrative judge’s conclusion that OPM’s admission that it did not “obtain from SSA the COLA amount applied to the social security benefit” necessarily rendered its calculations incorrect, ID at 3, and we find that the appellant failed to identify any error with OPM’s5 computation of his FERS disability annuity benefits,6 IAF, Tab 1 at 4, Tab 9 at 17-20; PFR File, Tab 1 at 19-25. Accordingly, we vacate the initial decision, and we affirm OPM’s final decision. NOTICE OF APPEAL RIGHTS7 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish 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 6 During the pendency of his appeal before the administrative judge, the appellant filed a motion wherein he sought “to add the 2021 year” to his Board appeal. IAF, Tab 13 at 4. The initial decision, however, did not address this motion. The Board typically has jurisdiction over OPM determinations affecting an appellant’s rights under FERS only after OPM has issued a final decision on the matter. McNeese v. Office of Personnel Management , 61 M.S.P.R. 70, 73-74, aff’d, 40 F.3d 1250 (Fed. Cir. 1994) (Table). Here, OPM’s final decision did not address the appellant’s 2021 disability annuity payments, IAF, Tab 9 at 6-8; thus, we find that the appellant’s challenges thereto are outside the scope of the Board’s jurisdiction. However, the appellant’s arguments pertaining to his 2021 annuity payments appear to be the same as those regarding his 2017-2020 payments, and therefore, his arguments regarding his 2021 annuity benefits have been implicitly addressed in this order. IAF, Tab 13 at 4. 7 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.6 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain7 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and 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. 8 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.8 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 8 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 9 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.10	Bryant_PatrickNY-0842-20-0233-I-1_Final_Order.pdf	2024-10-02	PATRICK BRYANT v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. NY-0842-20-0233-I-1, October 2, 2024	NY-0842-20-0233-I-1	NP
458	https://www.mspb.gov/decisions/nonprecedential/Mummert_Lester_F_PH-0842-19-0036-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LESTER F. MUMMERT, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER PH-0842-19-0036-I-1 DATE: October 2, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Lawrence A. Berger , Esquire, Glen Cove, New York, for the appellant. Asmaa Abdul-Haqq and Gedety N. Serralta-Aldrich , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER ¶1The agency has filed a petition for review of the initial decision, which reversed its denial of the appellant’s request for law enforcement officer (LEO) retirement coverage under the Federal Employees’ Retirement System (FERS). 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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). For the reasons discussed below, we GRANT the agency’s petition for review and REVERSE the initial decision. BACKGROUND ¶2The appellant was employed by the agency as a GS-1811 Criminal Investigator from August 7, 1994, through August 6, 2016. E.g., Initial Appeal File (IAF), Tab 5 at 38, Tab 6 at 36, Tab 8 at 38, Tab 9 at 8-10. Effective August 7, 2016, the agency reclassified his position to a GS-0083 Detective, and it changed his retirement plan from an LEO retirement plan under FERS to a standard retirement plan under FERS. IAF, Tab 5 at 38-41. On December 30, 2016, the appellant requested to retire “as an 1811 Criminal Investigator GS-11” with LEO retirement benefits. Id. at 37. On September 24, 2018, the agency denied the appellant’s request for LEO retirement under FERS. IAF, Tab 4 at 27-28. ¶3The appellant filed a Board appeal indicating that he was challenging his position being “unjustifiably classified from a Criminal Investigator 1811 position to a Detective 0083 position.” IAF, Tab 1 at 4. With his appeal, the appellant provided a copy of the September 24, 2018 agency decision letter denying his request for LEO retirement under FERS. Id. at 7-8. The appellant requested a hearing on the matter. Id. at 2. Thereafter, the administrative judge clarified that the sole issue before the Board was whether the appellant could show by preponderant evidence that he was entitled to LEO special retirement benefits under 5 U.S.C. § 8412(d) “from August 7, 1994[,] onward.” IAF, Tab 21 at 1. ¶4The administrative judge held a hearing. IAF, Tab 23; Hearing Transcript (HT). The administrative judge issued an initial decision reversing the agency’s determination and finding that the appellant showed by preponderant evidence that he qualified for LEO retirement coverage under FERS from August 7, 1994, to August 6, 2016. IAF, Tab 29, Initial Decision (ID) at 8, Tab 31 at 1. In2 pertinent part, the administrative judge found that the appellant proved that the primary duties of the Criminal Investigator position involved the investigation, apprehension, or detention of individuals suspected or convicted of criminal offenses. ID at 6-8. The administrative judge did not make a finding as to whether the appellant was entitled to LEO retirement coverage for service after August 6, 2016. ¶5The agency has filed a petition for review of the initial decision, the appellant has filed a response, and the agency has filed a reply. Petition for Review (PFR) File, Tabs 1, 3-5. DISCUSSION OF ARGUMENTS ON REVIEW ¶6The agency disputes the administrative judge’s analysis and argues that the appellant did not prove his entitlement to LEO credit.2 PFR File, Tab 1 at 6, 12-30. We agree. ¶7A Federal employee seeking LEO retirement coverage under FERS bears the burden of proving his entitlement to such benefits by preponderant evidence. Klipp v. Department of Homeland Security , 34 F.4th 1326, 1331 (Fed. Cir. 2022); Watson v. Department of the Navy , 262 F.3d 1292, 1298 (Fed. Cir. 2001); Fritts v. Department of Homeland Security , 102 M.S.P.R. 265, ¶ 6 (2006). To qualify for LEO retirement coverage under FERS, the appellant must show that the duties 2 The appellant argues that the agency’s petition for review should be dismissed because the agency did not provide a certificate of compliance with “the interim relief order.” PFR File, Tab 3 at 5-8. Although the initial decision did not explicitly order interim relief, it also did not explicitly state that interim relief was not being awarded. When, as here, the appellant is the prevailing party, the initial decision must include an affirmative statement one way or the other. 5 C.F.R. § 1201.111(b)(4). The administrative judge’s failure to include such a statement means that the agency has an interim relief obligation by operation of statute. Stewart v. Department of Transportation, 2023 MSPB 18, ¶¶ 7-10. Nevertheless, dismissal of an agency’s petition on interim relief grounds is a matter committed to the Board’s discretion, id., ¶ 12, and under the circumstances of this case, we find that dismissal would not be appropriate. This is especially so because interim relief is generally not appropriate in retirement benefits appeals like this one. See Steele v. Office of Personnel Management, 57 M.S.P.R. 458, 463-64 (1993), aff’d, 50 F.3d 21 (Fed. Cir. 1995) (Table).3 of his position: (1) are primarily the investigation, apprehension, or detention of individuals suspected or convicted of offenses against the criminal laws of the United States (U.S.), or the protection of U.S. officials against threats to personal safety; and (2) are sufficiently rigorous that employment opportunities should be limited to young and physically vigorous individuals. 5 U.S.C. § 8401(17)(A)(i)-(ii); 5 C.F.R. § 842.802. Primary duties are duties that: (1) are paramount in influence or weight, that is, constitute the basic reasons for the existence of the position; (2) occupy a substantial portion of the individual’s working time over a typical work cycle; and (3) are assigned on a regular and recurring basis. 5 C.F.R. § 842.802. Duties that are of an emergency, incidental, or temporary nature cannot be considered primary even if they meet the substantial portion of time criterion. Id. In general, if an employee spends on average at least 50% of his time performing certain duties, those duties are his primary duties. Id. ¶8During the pendency of the petition for review, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Klipp, 34 F.4th at 1333, which emphasized that “the Board must make two independent findings [in evaluating entitlement to LEO credit]: the first must be based on the position description evidence alone, and if that finding is adverse to the employee, the second must be based solely on evidence of his or her actual duties.” ¶9In finding the appellant entitled to LEO retirement coverage from August 7, 1994, through August 6, 2016, the administrative judge relied on the Criminal Investigator position description, excerpts from the Office of Personnel Management (OPM) classification standards for series 1800 positions, the appellant’s performance standards and appraisals, as well as evidence of the appellant’s day-to-day duties.3 ID at 6-8. Because the administrative judge did 3 This appeal presents an unusual scenario because the agency asserts that the appellant should have been properly classified as a series GS-0083, instead of a series GS-1811, from August 7, 1994, through August 6, 2016. IAF, Tab 5 at 39 -41. Whether this reclassification was correct is outside the Board’s jurisdiction. See Pierce v. Merit4 not make independent findings, as described in Klipp, his analysis is not consistent with the court’s holding therein. Nevertheless, because the record is fully developed on the relevant issues, we will apply the two-part analysis from Klipp on review. The appellant is not entitled to LEO retirement coverage under FERS from August 7, 1994, through August 6, 2016. ¶10We have first considered the position description for the GS-1811 Criminal Investigator position. E.g., IAF, Tab 8 at 39 -43, Tab 9 at 17-27, Tab 19 at 154-58. We find that the position description does not show that the primary duties of the Criminal Investigator position involved the investigation of individuals suspected or convicted of criminal offenses. In pertinent part, the position description stated that the incumbent investigated “offenses committed by or against military and civilian personnel or against [G]overnment and private property located on Fort Detrick.” IAF, Tab 8 at 40. The incumbent investigated “cases of loss, theft, pilferage, or damage of property[,] incidents of fraud, narcotics use and serious vehicle accidents[,] and applicants for [F]ederal employment or benefits who have questionable backgrounds or who are applying for a sensitive position.” Id. The incumbent also served as an evidence custodian. Id. ¶11Notably, the position description stated that a Criminal Investigator performed “any combination of appropriate investigative methods and techniques,” including, among other things, (1) identifying the perpetrator and establishing facts for submission “to [an] appropriate military or civil authority for military or civil judiciary action, or administrative [or] non-judicial action or action to prevent recurrence;” (2) interviewing the subject, complainants, and Systems Protection Board , 242 F.3d 1373, 1375-76 (Fed. Cir. 2001). We need not decide whether the administrative judge erred in relying on OPM’s classification standards because the position description is more relevant to the Board’s determination in this matter. Moreover, even if we consider the classification standards in our analysis, a different outcome is not warranted. 5 witnesses to obtain information; (3) determining the basis of a complaint and “whether an offense, incident[,] or violation has occurred;” (4) taking written statements, conducting examination of crime scenes, and searching for evidence; (5) analyzing and resolving conflicting testimony or evidence from witnesses through fact finding until evidence to support a legal or administrative decision has been made; (6) conducting surveillance of individuals; and (7) conducting “extensive research to compare suspect documents with information obtained from other sources.” Id. at 40-41. According to the Criminal Investigator position description, these duties comprised 55% of the duties of the position. Id. at 41. ¶12However, of that 55%, the position description does not identify or estimate how much time was spent on investigation of individuals suspected of criminal offenses, as compared to individuals suspected of civil offenses, investigations of applicants or individuals applying for a sensitive position, evidence custodian tasks, or investigations of serious vehicle accidents. Therefore, we find—based solely on the position description—that the primary duties of the Criminal Investigator position did not involve investigations of individuals suspected or convicted of criminal offenses. See 5 C.F.R. § 842.802 (stating that, if an employee spends on average at least 50% of his time performing certain duties, those duties are his primary duties). ¶13We also find that the position description does not show that the appellant’s primary duties involved apprehension or detention of individuals suspected or convicted of criminal offenses. Indeed, the position description only showed that 25% of the duties of the Criminal Investigator position involved, among other things, planning and conducting raids, preparing documents to obtain search and arrest warrants, serving subpoenas, interrogating suspects, executing search and arrest warrants, apprehending suspects or offenders, advising suspects of legal rights prior to interrogation, and interrogating suspects and offenders. Id.6 ¶14Having determined in the initial decision that the appellant proved that the primary duties of the Criminal Investigator position involved the investigation, apprehension or detention of individuals suspected or convicted of criminal offenses, the administrative judge did not alternatively consider whether the appellant proved that the primary duties of the Criminal Investigator position involved the protection of U.S. officials against threats to personal safety. We do so now. ¶15Consistent with Klipp, we have first considered the Criminal Investigator position description. The position description identified as duties “[r]espond[ing] to terrorist or hostage incidents if they occur on the installation” and “[s]erv[ing] as a member of the hostage negotiation team,” but it states that these duties only comprised 10% of the duties of the Criminal Investigator position. IAF, Tab 8 at 43. Beyond this reference, the position description does not show that the appellant’s duties involved the protection of U.S. officials against threats to personal safety. For these reasons, we do not find that the position description supports the appellant’s claim of entitlement to LEO credit. ¶16We next consider the appellant’s actual duties. Klipp, 34 F.4th at 1333. Physical vigorousness and hazardousness are the two major factors to be considered in determining whether a position should be given LEO status based on actual duties. Id. at 1332 (citing Crowley v. United States , 398 F.3d 1329, 1339 (Fed. Cir. 2005)). Physical vigorousness—“the first and most important factor”—“is assessed by evaluating (in order of importance): whether the position has ‘(1) strenuous physical fitness requirements; (2) age requirements (such as a mandatory retirement age or a maximum entry age); [and] (3) a requirement that an employee be on call twenty-four hours a day.’” Id. (quoting Crowley, 398 F.3d at 1339). ¶17We have evaluated these criteria, but we find that the actual duties of the Criminal Investigator position do not satisfy the physical vigorousness requirement. For example, the administrative judge found that the appellant’s7 major duties included that he “must be proficient in using firearms, subduing persons, and defending [oneself] and others, making a level of physical fitness necessary.” ID at 6 (emphasis added). However, the record does not support that the Criminal Investigator position involved strenuous physical fitness requirements. Indeed, the appellant and his current supervisor testified that, prior to August 2016, the appellant was not required to undergo any type of physical fitness or agility testing, and he was not subject to any physical fitness standards whatsoever. HT at 21 -22, 63 (testimony of the appellant), 144 (testimony of the appellant’s supervisor); IAF, Tab 5 at 12, 14. When asked how often he had to physically chase down and apprehend a suspect, the appellant did not provide a clear answer; instead, he testified that such a task was “not the investigator[’]s role.” HT at 20-21 (testimony of the appellant). ¶18In the initial decision, the administrative judge determined that the maximum entry age for the appellant’s position was 37 and retirement was mandatory at age 57. ID at 6; HT at 14 (testimony of the appellant). However, in his response to the petition for review, the appellant avers that, “[a]s of August 6, 2016, [he] had completed 20 years of law enforcement officer service . . . and was 64 years of age.” PFR File, Tab 3 at 6 n.1. It is not necessary for us to resolve this discrepancy or determine whether the appellant’s position was subject to age requirements because, even assuming that it was, he has not satisfied the other considerations for physical vigorousness. ¶19Finally, the administrative judge found, without any citation to the record, that the appellant “was on call 24 hours and received calls after normal working hours to respond to crime scenes.” ID at 7. However, the appellant testified that he was not authorized to record his status as “on-call” and he never received on-call pay. HT at 54 (testimony of the appellant). Moreover, his supervisor testified that there was never any official requirement that the appellant be on -call for 24 hours. HT at 143 (testimony of the appellant’s supervisor). The appellant testified that he was frequently called into work in the middle of the night, but the8 record does not support the administrative judge’s conclusion that his position required him to be on-call 24 hours a day. HT at 54 (testimony of the appellant); see Crowley, 398 F.3d at 1341 (finding anecdotal evidence that the employee was called into work at irregular hours and testimony regarding the appellant’s general availability insufficient to support a finding that the employee was officially required to be on call 24 hours a day). ¶20For these reasons, we conclude that the appellant’s actual duties in the Criminal Investigator position did not require physical vigorousness. Under such circumstances, we need not consider hazardousness in our analysis. Crowley, 398 F.3d at 1339. ¶21We further find that evidence regarding the appellant’s actual duties in the Criminal Investigator position showed that his primary duties did not involve investigating, apprehending, or detaining suspected criminals or protecting U.S. officials against threats to personal safety. Indeed, the evidence reflected that a substantial portion of the appellant’s investigatory work, as much as 40%, was devoted to conducting background checks on agency employees. HT at 30-32, 44-48 (testimony of the appellant), 106-08 (testimony of the appellant’s supervisor). Similarly, the position required that he spend as much as 20% of his time serving as the primary evidence custodian. IAF, Tab 15 at 94; HT at 22-23 (testimony of the appellant), 108 (testimony of the appellant’s supervisor). His job duties also included coordinating and conducting training for police officers and police security guards, working with a family advocacy group that addressed domestic violence issues, and working with a crime prevention community outreach program. IAF, Tab 15 at 94, Tab 16 at 6; HT at 29-32, 39-41 (testimony of the appellant). Although the record showed that the appellant spent as much as 40% of his time investigating criminal activity, to include interviewing witnesses and collecting evidence, the appellant did not prove by preponderant evidence that the primary duties of his position involved investigating, apprehending, and detailing criminals. HT at 136-38 (testimony of the appellant’s supervisor); see9 5 C.F.R. § 842.802 (stating that, if an employee spends on average at least 50% of his time performing certain duties, those duties are his primary duties). ¶22Regarding whether his actual duties involved protecting U.S. officials against threats to personal safety, the record contains copies of the appellant’s performance evaluations, which referenced his involvement with “Personnel Protective Missions,” “VIP + Dignitaries [P]rotection,” “becoming High Ranking Person Protection[] certified,” and physical security. E.g., IAF, Tab 15 at 93-97, Tab 16 at 4-38, Tab 17 at 4-26. The record also contains a memorandum written by the appellant’s supervisor suggesting that, following September 11, 2001, the appellant “performed protective service detail functions to accompany high importance command and staff personnel” as an overtime assignment. IAF, Tab 5 at 15-16. At the hearing, when asked whether “serving on protective service details or missions” was one of his primary duties, the appellant explained only that, “[a]fter 9/11, it was made a priority.” HT at 35 (testimony of the appellant). We conclude that the appellant did not show that his primary duties as a Criminal Investigator involved the protection of U.S. officials against threats to personal safety because his provided no estimate as to how often he engaged in such protective duties, and the subject memorandum suggested that the appellant only performed protective service details on an infrequent basis as an overtime assignment. IAF, Tab 5 at 15-16; see 5 C.F.R. § 842.802 (stating that duties of an emergency, incidental, or temporary nature cannot be considered “primary” even if they occupy a substantial portion of the individual’s working time). The appellant is not entitled to LEO retirement coverage under FERS for service after August 6, 2016. ¶23The initial decision did not address the appellant’s eligibility for LEO retirement coverage for his service as a GS-0083 Detective after August 6, 2016. PFR File, Tab 1 at 7 n.1. Although the appellant contended before the administrative judge that he was entitled to LEO retirement coverage for this period of service, IAF, Tab 25 at 4, 10-13, he does not raise this issue on review.10 We conclude, however, that the appellant is not entitled to LEO retirement coverage for his service after August 6, 2016. ¶24As noted above, effective August 7, 2016, the agency reclassified the appellant’s position to that of a series GS-0083 Detective. IAF, Tab 5 at 38-41. Consistent with Klipp, we first examine the position description. IAF, Tab 9 at 32-41. The Detective position description stated that the appellant’s duties involved, among other things, “conduct[ing] investigations to apprehend and/or detain persons committing crimes against persons and property;” “[d]evelop[ing] and follow[ing] leads, tak[ing] statements, and gather[ing] information and facts;” “[a]nalyz[ing] data to identify suspects and develop[ing] case information for use in pressing charges and bringing suspects to trial;” “[p]erform[ing] surveillance of suspects, crime scenes, and suspected or potential criminal activities;” “[i]nterview[ing] witnesses, suspects, and victims, and obtain[ing] statements;” “[a]ppear[ing] as a witness or testif[ying] at trials, hearings, courts martial[,] and other [F]ederal judiciary proceedings;” “conduct[ing] raids and/or [premises searches], apprehend[ing] and/or detain[ing] suspects, and seiz[ing] evidence, weapons, [and] contraband;” “performing . . . physical security;” and “[p]articipating in VIP ‘Personal Protection Missions.’” Id. at 33-34. These duties could qualify as LEO work, but the position description stated that such duties only accounted for 45% of the Detective duties. As such, we do not find that they constitute primary duties. See 5 C.F.R. § 842.802 (noting that, in general, if an employee spends on average at least 50% of his time performing certain duties, those duties are his primary duties). Therefore, we find that the Detective position description does not support the appellant’s claim of entitlement to LEO credit because his primary duties did not involve the investigation, apprehension, or detention of individuals suspected or convicted of criminal offenses or the protection of U.S. officials against threats to personal safety.11 ¶25Turning to the second inquiry, we find that evidence of the appellant’s actual job duties as a Detective did not prove that his service was creditable. Here, too, the actual duties of the Detective position did not support a finding of physical vigorousness. Indeed, following the reclassification, the appellant’s day-to-day job duties remained largely unchanged, with the exception that, as a GS-0083 Detective, he was subject to physical fitness testing.4 HT at 63-64 (testimony of the appellant), 112, 133-34 (testimony of the appellant’s supervisor). The appellant testified that his current physical fitness standards require that he complete a 1.5-mile run in less than 17 minutes and “15 or 18 push-ups.” HT at 64 (testimony of the appellant). Neither the appellant nor his supervisor identified any other physical fitness requirements. We find that these physical fitness standards do not constitute strenuous physical fitness requirements. Additionally, the appellant testified that he was not subject to any age requirements in the Detective position, including a mandatory retirement age or a maximum entry age, and there was no evidence that the appellant had to be on-call 24 hours a day. Id. (testimony of the appellant). Because we find that the duties of the Detective position did not involve physical vigorousness, we need not consider hazardousness. See Crowley, 398 F.3d at 1339. We further find that the primary duties of the Detective position, as evidenced by his actual duties, did not involve the investigation, apprehension, or detention of individuals suspected or convicted of criminal offenses or the protection of U.S. officials against threats to personal safety. Conclusion ¶26For the reasons described herein, the appellant has not met his burden of proving that he is entitled to receive the LEO retirement benefits that he seeks 4 In pertinent part, the appellant’s supervisor testified that, as a Detective, the appellant performed background check investigations approximately 40% of the time, he performed evidence custodian tasks 10-20% of the time, and he performed internal investigations 5% of the time. HT at 112-13 (testimony of the appellant’s supervisor).12 from August 7, 1994, until August 6, 2016, and from August 7, 2016, onward. Accordingly, we reverse the initial decision and affirm the agency’s final decision. ¶27Although we acknowledge that this is the correct outcome, we are nevertheless troubled by certain facts present in this appeal. Specifically, in the summer of 1994, prior to the appellant’s appointment, the agency approved certain positions for special retirement coverage and designated the appellant’s position of Criminal Investigator, GS-1811-05 through GS-13, as one with primary/rigorous LEO duties. IAF, Tab 9 at 11-13, 15-16. In fact, while he was classified as a Criminal Investigator, the appellant’s Standard Form 50s indicated that his retirement plan was “M,” described as “FERS AND FICA SPEC[IAL],” id. at 8-9, Tab 8 at 38, Tab 5 at 38, which reflects an LEO or firefighter retirement plan. See OPM, CSRS and FERS Handbook, Payroll Office Reporting of Withholdings and Contributions , ch. 80, § 80A5.1-3 (Apr. 1998), https://www.opm.gov/retirement - services/publications - forms/csrsfers - handbook/ c080.pdf . Therefore, the appellant contributed an increased amount to his retirement annuity because of the agency’s classification of his position. Id.; see also 5 U.S.C. § 8422(a) (setting forth the rate of deduction and contributions based on categories of employees, including LEOs). ¶28While the appellant was refunded the excess contributions, IAF, Tab 4 at 53, the appellant’s retirement plans were nevertheless upended by the agency’s failure to properly classify his position for over two decades. In another context, this outcome could have been prevented by the application of a variety of equitable defenses, including laches, which bars an action when an unreasonable delay in bringing the action has prejudiced the party against whom the action is taken. Johnson v. U.S. Postal Service , 121 M.S.P.R. 101, ¶ 6 (2014). However, the Board’s hands are proverbially tied by the U.S. Supreme Court’s decision in Office of Personnel Management v. Richmond , 496 U.S. 414, 416, 434 (1990),13 which prohibits the use of equitable considerations as a basis for granting benefits to which an employee is not otherwise legally entitled. ORDER ¶29This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. § 1201.113(c)). NOTICE OF APPEAL RIGHTS5 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the 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 option is most appropriate in any matter.14 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file15 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. 16 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 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 17 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.18	Mummert_Lester_F_PH-0842-19-0036-I-1_Final_Order.pdf	2024-10-02	LESTER F. MUMMERT v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-0842-19-0036-I-1, October 2, 2024	PH-0842-19-0036-I-1	NP
459	https://www.mspb.gov/decisions/nonprecedential/Holden_Carl_M_DA-0752-16-0556-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CARL M. HOLDEN, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER DA-0752-16-0556-I-1 DATE: October 2, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Thomas Fritz Muther Jr. , Esquire, Denver, Colorado, for the appellant. Brittany McGill Dozier , Fort Gregg-Adams, Virginia, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER ¶1The appellant has petitioned for review of the initial decision, which dismissed his appeal for lack of jurisdiction. For the reasons set forth below, we DISMISS the appeal as settled. ¶2After the filing of the petition for review, the parties submitted a document entitled, “NEGOTIATED SETTLEMENT AGREEMENT AND GENERAL 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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). RELEASE,” signed by the appellant on September 11, 2024, and by an agency official on September 12, 2024. Petition for Review (PFR) File, Tab 12. The document provides, among other things, for the withdrawal of the appeal. ¶3Before dismissing a matter as settled, the Board must decide whether the parties have entered into a settlement agreement, whether they understand its terms, and whether they intend to have the agreement entered into the record for enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146, 149 (1988). In addition, before accepting a settlement agreement into the record for enforcement purposes, the Board must determine whether the agreement is lawful on its face and whether the parties freely entered into it. See Delorme v. Department of the Interior , 124 M.S.P.R. 123, ¶¶ 10-11 (2017 ). ¶4Here, we find that the parties have entered into a settlement agreement, understand its terms, and intend for the agreement to be entered into the record for enforcement by the Board. PFR File, Tab 12 at 4-8. Accordingly, we find that dismissing the appeal with prejudice to refiling (i.e., the parties normally may not refile this appeal) is appropriate under these circumstances. In addition, we find that the agreement is lawful on its face and freely entered into, and we accept the settlement agreement into the record for enforcement purposes. ¶5This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R. § 1201.113). NOTICE TO THE PARTIES OF THEIR ENFORCEMENT RIGHTS If the agency or the appellant has not fully carried out the terms of the agreement, either party may ask the Board to enforce the settlement agreement by promptly filing a petition for enforcement with the office that issued the initial decision on this appeal. The petition should contain specific reasons why the petitioning party believes that the terms of the settlement agreement have not2 been fully carried out, and should include the dates and results of any communications between the parties. 5 C.F.R. § 1201.182(a). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). 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 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case, and 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 on4 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a courtappointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5 other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 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 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Holden_Carl_M_DA-0752-16-0556-I-1_Final_Order.pdf	2024-10-02	CARL M. HOLDEN v. DEPARTMENT OF DEFENSE, MSPB Docket No. DA-0752-16-0556-I-1, October 2, 2024	DA-0752-16-0556-I-1	NP
460	https://www.mspb.gov/decisions/nonprecedential/Walters_StevenDC-0752-20-0549-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD STEVEN WALTERS, Appellant, v. DEPARTMENT OF AGRICULTURE, Agency.DOCKET NUMBER DC-0752-20-0549-I-1 DATE: October 2, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Georgia A. Lawrence , Esquire, Jesse L. Kelly II , Esquire, and Shaun C. Southworth , Esquire, Atlanta, Georgia, for the appellant. Julie Nelson , Esquire, Golden, Colorado, for the agency. Marcus Mitchell , Esquire, Albuquerque, New Mexico, for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman Henry J. Kerner , Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which affirmed his removal for violating the terms of a Safe Harbor Agreement. On petition for review, the appellant argues that the Safe Harbor Agreement was no 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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). longer in effect during the date of his alleged violation and, in the alternative, that he abided by the Agreement when he submitted to a drug test as directed. The appellant also renews his argument that his removal was based on disability discrimination because the agency failed to accommodate his anxiety during the testing process.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). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 2 In the initial decision, the administrative judge relied on the framework set forth in Southerland v. Department of Defense , 119 M.S.P.R. 566, ¶¶ 23-25 (2013) to analyze the appellant’s disparate treatment disability discrimination claim, and she concluded that the appellant did not show that his disability was a motivating factor in his removal. Initial Appeal File, Tab 30, Initial Decision at 26-28. After the administrative judge issued the initial decision in this appeal, the Board issued Pridgen v. Office of Management and Budget , 2022 MSPB 31, which clarified the proper analytic framework for a disability discrimination claim. Pridgen, 2022 MSPB 31, ¶¶ 35-42. Nevertheless, under both Southerland and Pridgen, the appellant bears the initial burden of proving by preponderant evidence that his disability was a motivating factor in the agency’s removal action. Pridgen, 2022 MSPB 31, ¶ 40; Southerland, 119 M.S.P.R. 566, ¶¶ 18, 23. Therefore, because we agree with the administrative judge that the appellant did not meet his initial burden, there is no material error in the administrative judge’s reliance on Southerland, rather than Pridgen. 2 NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the 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). 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case, and 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 on4 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5 other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit 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 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Walters_StevenDC-0752-20-0549-I-1_Final_Order.pdf	2024-10-02	STEVEN WALTERS v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. DC-0752-20-0549-I-1, October 2, 2024	DC-0752-20-0549-I-1	NP
461	https://www.mspb.gov/decisions/nonprecedential/Smith_Michelle_M_DC-0752-20-0166-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MICHELLE M. SMITH, Appellant, v. DEPARTMENT OF THE NAVY, Agency.DOCKET NUMBER DC-0752-20-0166-I-1 DATE: October 1, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Hunter Griffin , Esquire, and Morgan Velasquez , Esquire, Dallas, Texas, for the appellant. Roburt C. Yale , Washington Navy Yard, D.C., for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman Henry J. Kerner , Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which sustained the agency’s chapter 75 removal action based on the following charges: (1) lack of candor; (2) failure to follow instructions or policy; (3) altering an official Government document; and (4) attempting to have an official Government 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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). document destroyed and/or concealed. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to clarify the legal standards applicable to the appellant’s claims of disparate treatment disability discrimination and reprisal for prior protected equal employment opportunity (EEO) activity, we AFFIRM the initial decision. The appellant’s arguments do not provide a basis to disturb the initial decision. The appellant challenges the administrative judge’s conclusion that the agency proved the charges alleged. Petition for Review (PFR) File, Tab 4 at 8-22. We have considered the appellant’s assertions; however, we discern no basis to disturb the administrative judge’s reasoned conclusion that the agency proved all specifications of its four charges by preponderant evidence. Initial Appeal File (IAF), Tab 51, Initial Decision (ID) at 3-18; 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); see also Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359 (1987) (same). 2 The appellant contends that she “was represented by ineffective counsel” before the administrative judge. PFR File, Tab 4 at 30. To this end, she asserts that her former counsel withdrew a potential witness, J.H., “without reason and without [her] consent.” Id.; IAF, Tab 21 at 9. This assertion, however, does not provide a basis to disturb the initial decision. Indeed, the Board has routinely held that appellants are responsible for the actions and inactions of their chosen representatives. See, e.g., Sparks v. U.S. Postal Service , 32 M.S.P.R. 422, 425 (1987). The appellant argues that the administrative judge made a series of erroneous rulings regarding witnesses. PFR File, Tab 4 at 29-30. She avers that the administrative judge “failed to allow and compel” the testimony of three witnesses, C.H., R.J., and C.M.,2 id., and should have procured a translator for a fourth witness, E.P., id. at 30. We disagree. The administrative judge has broad discretion to regulate the course of the hearing and to exclude evidence and witnesses that have not been shown to be relevant, material, and nonrepetitious. Thomas v. U.S. Postal Service , 116 M.S.P.R. 453, ¶ 4 (2011); 5 C.F.R. § 1201.41(b)(8), (10). To obtain reversal of an initial decision on the ground that the administrative judge abused his discretion in excluding evidence, the appellant must show on review that relevant evidence, which could have affected the outcome, was disallowed. Sanders v. Social Security Administration , 114 M.S.P.R. 487, ¶ 10 (2010); see Miller v. Department of Defense , 85 M.S.P.R. 310, ¶ 8 (2000) (explaining that an administrative judge has wide discretion to control the proceedings, including authority to exclude testimony he believes would be irrelevant or immaterial). Here, insofar as the appellant failed to timely request C.H. as a witness prior to the hearing, her assertions regarding C.H. on review are necessarily 2 Although the appellant initially identifies four witnesses who “the [administrative judge] failed to allow and compel,” PFR File, Tab 4 at 29, she subsequently acknowledges that her counsel withdrew her request for J.H., one of these four witnesses, id. at 30; IAF, Tab 21 at 9. 3 unavailing. IAF, Tab 19 at 9-13; see Lohr v. Department of the Air Force , 24 M.S.P.R. 383, 386 (1984) (reasoning that an appellant was not deprived of the right to question a witness when he could have requested and/or subpoenaed the witness but failed to do so). Next, we discern no basis to disturb the administrative judge’s conclusion that the proffered testimony of R.J. was duplicative. IAF, Tab 19 at 10-11, Tab 21 at 9; see Thomas, 116 M.S.P.R. 453, ¶ 4. Moreover, to the extent that the appellant believed that the testimony of R.J. was material to her appeal, she could have objected to the administrative judge’s prehearing ruling regarding the witness; however, she did not. See Tarpley v. U.S. Postal Service , 37 M.S.P.R. 579, 581 (1988) (explaining that the appellant’s failure to timely object to rulings on witnesses precludes her from doing so on petition for review). Regarding C.M., the record reflects that, despite the administrative judge’s issuance of a subpoena for C.M.’s appearance at the hearing, she did not present herself. IAF, Tab 40 at 1, Tab 41 at 1-2, Tab 48, Hearing Recording (HR) at 0:00:50 to 00:01:07 (statement of the administrative judge). Following C.M.’s nonappearance, the appellant indicated to the administrative judge that she did not wish to pursue enforcement of the subpoena; rather, she wished to proceed with closing arguments. HR at 00:01:19 to 00:2:17 (statements of the administrative judge, the appellant’s representative, and the appellant). Thus, the appellant’s assertions regarding C.M. do not compel a different outcome. See Daniels v. U.S. Postal Service , 57 M.S.P.R. 272, 282 (1993) (explaining that the appellant cannot wait until after the adjudication is complete to object to the conduct of the proceedings). Moreover, apart from generalized assertions that the testimony of the three aforementioned witnesses “could have corroborated” other unspecified testimony, the appellant does not explain how the testimony of C.H., R.J., or C.M. would have changed the outcome of her appeal. PFR File, Tab 4 at 30; see Sanders, 114 M.S.P.R. 487, ¶ 10. Finally, insofar as the appellant did not timely request a translator for E.P. before the administrative judge, she is4 precluded from doing so on review. IAF, Tab 19 at 11; see Daniels, 57 M.S.P.R. at 282. Thus, the appellant’s assertions regarding witnesses do not warrant a different outcome. The appellant avers that the administrative judge failed to “properly assess” the reasonableness of the agency’s penalty. PFR File, Tab 4 at 22. To this end, she alleges that the administrative judge “erred in finding that removal of removal (sic) was the only reasonable penalty.” Id. at 23. She also alleges that the deciding official failed to consider all of the Douglas factors.3 Id. at 23-24. When the agency’s charges are sustained, the Board will review an agency-imposed penalty only to determine if the agency considered all of the relevant factors and exercised discretion within tolerable limits of reasonableness. Ellis v. Department of Defense , 114 M.S.P.R. 407, ¶ 11 (2010); Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981). In making this determination, the Board must give due weight to the agency’s primary discretion in maintaining employee discipline and efficiency, recognizing that the Board’s function is not to displace management’s responsibility but to ensure that managerial judgment has been properly exercised. Ellis, 114 M.S.P.R. 407, ¶ 11; Douglas, 5 M.S.P.R. at 306. The Board will modify an agency-imposed penalty only when it finds that the agency failed to weigh the relevant factors or the penalty clearly exceeds the bounds of reasonableness. Ellis, 114 M.S.P.R. 407, ¶ 11. Here, the administrative judge applied the proper legal standard and concluded that the agency’s selected penalty of removal was not unwarranted 3 The appellant also conflates the administrative judge’s conclusion regarding the agency’s penalty determination with his determination regarding nexus, and she seemingly argues that her removal was unreasonable because the agency failed to satisfy the nexus requirement regarding its charge of failure to follow instructions or policy. PFR File, Tab 4 at 23-24. We find this assertion both misplaced and unavailing. See Blevins v. Department of the Army , 26 M.S.P.R. 101, 104 (1985) (explaining that failure to follow instructions affects an agency’s ability to carry out its mission and is clearly connected to the efficiency of the service), aff’d, 790 F.2d 95 (Fed. Cir. 1986) (Table).5 under the circumstances and was within the tolerable bounds of reasonableness.4 ID at 18-20; see Ellis, 114 M.S.P.R. 407, ¶ 11. To this end, the administrative judge reasoned that the deciding official “gave full consideration to the Douglas factors.” ID at 19; see Douglas, 5 M.S.P.R. at 305-06. Indeed, the record reflects that the deciding official thoroughly considered both relevant aggravating factors, including the seriousness of the appellant’s offenses and her past disciplinary record, and mitigating factors, including the appellant’s approximately 30 years of Federal service and adequate performance evaluations. IAF, Tab 11 at 32-34. Thus, we discern no shortcomings with the agency’s weighing of the Douglas factors, and we agree with the administrative judge’s conclusion that the appellant’s removal did not clearly exceed the bounds of reasonableness. ID at 18-20; see Smith v. Department of the Interior , 112 M.S.P.R. 173, ¶ 26 (2009) (stating that the Board has found removal to be appropriate when an employee has demonstrated a lack of candor and has taken unauthorized absences); see also Jones v. Department of Justice , 98 M.S.P.R. 86, ¶ 21 (2004) (explaining that a charge of failure to follow instructions may be sufficient cause for removal). The appellant argues that she proved her affirmative defense of disability discrimination insofar as the agency failed to provide her with a reasonable accommodation. PFR File, Tab 4 at 26-28. To this end, she avers that the administrative judge erroneously faulted her for requesting a reasonable accommodation from her supervisor instead of from the agency’s EEO office. Id. at 27. We find this assertion unavailing. Here, the initial decision is devoid of any indication that the administrative judge faulted the appellant for failing to request a reasonable accommodation with the agency’s EEO office. Instead, the administrative judge acknowledged that the appellant had contacted the agency’s EEO office regarding her accommodation request; however, after an EEO 4 The administrative judge did not, as the appellant alleges, conclude that removal was “the only reasonable penalty,” PFR File, Tab 4 at 23; rather, he explained that the deciding official, after reviewing the pertinent information, had “concluded that removal was the only penalty that was reasonable and appropriate,” ID at 19.6 specialist informed the appellant of the next steps that she should take in the accommodation process, she failed to respond. ID at 22; IAF, Tab 15 at 42-46. Indeed, as set forth in the initial decision, the appellant acknowledged at the hearing that she “didn’t submit anything” to the agency’s EEO office. ID at 22. Thus, we discern no basis to disturb the administrative judge’s conclusion that the agency did not violate its duty to provide a reasonable accommodation. See White v. Department of Veterans Affairs , 120 M.S.P.R. 405, ¶ 12 (2013) (explaining that when an employee fails to respond to the employer’s reasonable request for medical information or documentation, an agency will not be found to have violated its duty to provide a reasonable accommodation). The appellant reasserts her affirmative defense of harmful procedural error/ violation of her due process rights; specifically, she contends that she “did not have an opportunity to rebut” findings made by the agency’s Office of the Inspector General (OIG).5 PFR File, Tab 4 at 29. This assertion, however, does not provide a basis to disturb the initial decision. Here, the agency’s notice of proposed removal provided the appellant with both notice of the charges against her, IAF, Tab 11 at 40-42, and all of the evidence on which it had relied, including the OIG’s Report of Investigation, IAF, Tab 10 at 155-73, Tab 11 at 38. Indeed, the appellant provided a written response thereto. IAF, Tab 11 at 50-54; see Cleveland Board of Education v. Loudermill , 470 U.S. 532, 546-48 (1985) (explaining that the essential requirements of constitutional due process for a tenured public employee are notice of the charges against him, with an explanation of the evidence, and an opportunity for the employee to present his account of events prior to the deprivation of his property right to continued employment). Moreover, the agency here complied with all of the procedural 5 The initial decision did not clearly distinguish the appellant’s constitutional right to procedural due process from the procedural protections provided by statute under 5 U.S.C. § 7513, and on review, it is unclear whether the appellant is alleging a violation of one or both sets of rights. ID at 23-24; PFR File, Tab 4 at 28-29. However, the appellant’s arguments are unavailing under either avenue.7 requirements set forth in 5 U.S.C. § 7513(b).6 See King v. Alston , 75 F.3d 657, 661 (Fed. Cir. 1996) (explaining that compliance with the procedures of 5 U.S.C. § 7513(b) satisfies the minimum due process requirements to which an employee is entitled). Thus, we discern no basis to disturb the initial decision. We modify the initial decision to clarify the legal standards applicable to the appellant’s claims of disparate treatment disability discrimination and reprisal for prior protected EEO activity. The appellant does not discernably challenge the administrative judge’s conclusion that she failed to prove her affirmative defense of disparate treatment disability discrimination. However, we make the following observations about the claim and recent case precedent. The administrative judge indicated that the appellant had the initial burden of proving by preponderant evidence that her disability was a motivating factor in the removal action and, if she met that burden, the burden would shift to the agency to prove by clear and convincing evidence that it would have taken the same action in the absence of the improper motive. ID at 22-23 (citing, e.g., Southerland v. Department of Defense , 119 M.S.P.R. 566, ¶ 23 (2013)). However, the Board in Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 20-25, 42, clarified that the standards and methods of proof applicable to Title VII claims are also applicable to status-based disability discrimination claims. An appellant raising an 6 Section 7513(b) provides: An employee against whom an action is proposed is entitled to- (1) at least 30 days’ advance written notice, unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, stating the specific reasons for the proposed action; (2) a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer; (3) be represented by an attorney or other representative; and (4) a written decision and the specific reasons therefor at the earliest practicable date.8 affirmative defense of disparate treatment under Title VII bears the burden of proving by preponderant evidence that the prohibited consideration was a motivating factor in the agency’s action or decision. Id., ¶¶ 20-22. However, to obtain full relief under the statute, including status quo ante relief, she must show that the discrimination was a but-for cause of the contested action or decision. Id. Although the administrative judge did not have the benefit of Pridgen, we find that the result of the appellant’s disparate treatment disability claim is the same under Pridgen. The appellant failed to prove that her disability was a motivating factor in her removal, and therefore, her claim fails. As to the appellant’s EEO retaliation claim, Pridgen clarified that in reprisal claims arising under the Rehabilitation Act, such as reprisal for requesting a reasonable accommodation, the appellant bears the burden of proving but-for causation. Here, however, insofar as we agree with the administrative judge’s conclusion that the appellant failed to produce any evidence apart from her bare assertions to support her claim of EEO reprisal, ID at 23, the appellant’s claim necessarily fails under any articulated legal framework, see Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 9 (2016). Accordingly, we affirm the initial decision as modified. NOTICE OF APPEAL RIGHTS7 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and 7 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.9 the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish 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 http://www.mspb.gov/probono for information regarding pro bono representation10 for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case, and 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 file11 with the EEOC no later than 30 calendar days after your representative 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.8 The court of appeals must receive your 8 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 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. 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,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.13	Smith_Michelle_M_DC-0752-20-0166-I-1_Final_Order.pdf	2024-10-01	MICHELLE M. SMITH v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-0752-20-0166-I-1, October 1, 2024	DC-0752-20-0166-I-1	NP
462	https://www.mspb.gov/decisions/nonprecedential/Dandridge_ConradSF-0752-20-0568-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CONRAD DANDRIDGE, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER SF-0752-20-0568-I-1 DATE: September 30, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Conrad Dandridge , Martinez, California, pro se. Helen Bouras and Zoe Wong , San Francisco, California, for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman Henry J. Kerner , Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which sustained the agency’s chapter 75 removal action based on the charge of absence without leave (AWOL). On petition for review, the appellant argues the following: (1) the administrative judge erred in denying his motion to compel 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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). discovery; (2) he did not have a sufficient opportunity to present his evidence at the hearing; and (3) both the agency and the administrative judge misconstrued provisions of the Family and Medical Leave Act of 1993 (FMLA). Petition for Review (PFR) File, Tab 1 at 3-7. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). The appellant’s contention regarding his motion to compel is unavailing. The appellant argues that the administrative judge erred in denying his motion to compel discovery. PFR File, Tab 1 at 3. To this end, he asserts that the administrative judge’s order denying his motion, which found that the appellant had filed an untimely discovery request on the agency, “referenced a[n]2 objection by the agency, which itself was [untimely].”2 Id. We find this argument unavailing. Contrary to the appellant’s assertion, the agency’s response to his motion to compel was timely filed. The record reflects that the agency’s response, which was due on October 4, 2020, a Sunday, was timely filed on October 5, 2020, a Monday. Initial Appeal File (IAF), Tabs 20, 23; see 5 C.F.R. § 1201.55(b) (stating that unless provided otherwise, an objection to a written motion must be filed within 10 days from the date of service of the motion); see also 5 C.F.R. § 1201.23 (explaining that, in computing the number of days allowed for complying with a deadline, if the date that ordinarily would be the last day for filing falls on a Saturday, Sunday, or Federal holiday, the filing period will include the first workday after that date). Thus, the appellant has not provided a basis to disturb any of the administrative judge’s discovery rulings. See Miller v. U.S. Postal Service , 85 M.S.P.R. 494, ¶ 9 (2000) (stating that it is well established that administrative judges have broad discretion in ruling on discovery matters). 2 The appellant provides with his petition for review a draft version of a motion to reconsider the order denying his motion to compel discovery, which he asserts that he did not provide to the administrative judge because he believed that “[she] was not going to be responsive.” PFR File, Tab 1 at 3, 8-9. The appellant, however, does not explain why he believes that the administrative judge would have been unresponsive to his motion had he timely filed the same. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980 ) (finding that the Board generally will not consider evidence submitted for the first time with the petition for review absent a showing that it was unavailable before the record was closed despite the party’s due diligence); 5 C.F.R. § 1201.115(d). To the extent the appellant, through this assertion, alleges favoritism on the part of the administrative judge, we find his assertion unavailing. The Board has consistently held that, in making a claim of bias or favoritism against an administrative judge, the appellant must overcome the presumption of honesty and integrity that accompanies all administrative adjudicators. Washington v. Department of the Interior , 81 M.S.P.R. 101, ¶ 7 (1999 ) (citing In re King, 1 M.S.P.R. 146, 151 (1979)). This presumption can be overcome only by a substantial showing of personal bias. Williams v. U.S. Postal Service , 87 M.S.P.R. 313, ¶ 12 (2000). Here, we find that the appellant has not made such a showing; indeed, the record reflects that the administrative judge thoroughly considered and addressed the appellant’s filings. 3 The appellant’s contentions regarding his inability to present evidence at the hearing are both unclear and unavailing. The appellant argues that he was not given a fair and/or sufficient opportunity to present his evidence at the hearing. PFR File, Tab 1 at 6-7. To this end, he seemingly asserts that the administrative judge asked him an “inappropriate question” during the hearing, i.e., why he did not identify a family member’s medical condition on an FMLA form, and that this question “shook” him and affected his presentation of the evidence. Id. He also seemingly argues that, although 2 days were set aside for the hearing, the proceeding did not last that long.3 Id. at 6. We find these assertions unavailing. We discern no error with the administrative judge’s questioning of the appellant regarding information that he provided and/or failed to provide to the agency on an FMLA form; indeed, the thrust of the appellant’s arguments before the administrative judge was that the agency had improperly denied his requests for FMLA leave that he needed to care for a family member with a serious health condition. IAF, Tab 1 at 5, Tab 12 at 2. Moreover, the hearing recording indicates that the administrative judge did not ask the subject question until the conclusion of the hearing, after the appellant had already presented his case. IAF, Tab 48, Hearing Recording at 56:25 to 58:39 (testimony of the appellant, file 6). We also discern no error in the administrative judge scheduling more time for the hearing than was ultimately needed; indeed, projecting the length of a hearing necessarily involves estimation on the part of the administrative judge. Moreover, the appellant does not discernably identify any evidence or argument 3 The appellant also states as follows: “At the beginning of the appellant’s testimony, the appellant stated that they had two presentation; one on the FMLA and one on the discrimination.” PFR File, Tab 1 at 6-7 (grammar as in original). The appellant’s argument in this regard, if any, is unclear. To the extent the appellant argues that the administrative judge applied the incorrect legal standard regarding the FMLA, we find his argument unavailing. Indeed, as discussed herein, the record reflects that the administrative judge correctly considered and applied the FMLA without shifting the burden of proof to the appellant. IAF, Tab 50, Initial Decision at 24-25 (citing Ellshoff v. Department of the Interior , 76 M.S.P.R. 54, 73-74 (1997 )).4 that he was unable to present at the hearing, much less any evidence that would have affected the outcome of his appeal. See Sanders v. Social Security Administration, 114 M.S.P.R. 487, ¶ 10 (2010) (explaining that, to obtain reversal of an initial decision on the ground that the administrative judge abused his discretion in excluding evidence, the appellant must show on review that relevant evidence, which could have affected the outcome, was disallowed). Thus, a different outcome is not warranted. The appellant’s contention that both the agency and the administrative judge misconstrued FMLA provisions does not warrant a different outcome. The appellant argues that the agency failed to comply with the dictates of the FMLA. PFR File, Tab 1 at 4-6. To this end, he asserts that the agency ignored both its own leave handbook and a series of regulatory provisions, to include 5 C.F.R. § 630.1208, which pertains to written medical certifications, and 5 C.F.R. § 630.1202, which sets forth FMLA regulatory definitions. Id. He also lists a series of FMLA -related legal errors on the part of the administrative judge, to include alleging that she ignored “the law dealing with [FMLA medical certifications]” and that she misunderstood the nature of the medical care that he provided to an ailing family member.4 Id. We find these assertions unavailing. Here, the agency charged the appellant with 77 separate specifications of AWOL regarding his absences from work from April 15, 2019, through August 15, 2019, and the administrative judge concluded that the agency proved all but 1 of its specifications, i.e., specification 14. IAF, Tab 10 at 94-99, Tab 50, Initial Decision (ID) at 12-23. In so concluding, the administrative judge thoroughly considered the evidence in the record, applied the correct legal standard, and concluded that the agency had complied with the dictates of the 4 The appellant also argues that “Kaiser legal” reviewed the medical documentation that he provided to the agency and, therefore, that any shortcomings associated therewith were the responsibility of “Kaiser,” who is “liable for violating the FMLA.” PFR File, Tab 1 at 7. The alleged involvement and misdeeds of this third-party entity, however, are outside the scope of the Board’s jurisdiction. 5 FMLA. ID at 12-25 (citing Ellshoff v. Department of the Interior , 76 M.S.P.R. 54, 73 (1997)). To this end, the administrative judge summarized the conflicting and/or insufficient information that the appellant provided to the agency regarding his need for FMLA leave, as well as the agency’s unsuccessful attempts to solicit additional information from the appellant. ID at 5-7. In finding unavailing the appellant’s contention that the agency had violated the FMLA, the administrative judge explained that the appellant had submitted into the record copies of “a number of regulations and statutory provisions related to leave without stating which provisions [he believed] were violated.” ID at 24 n.13 (citing IAF, Tabs 26-37, 39). We discern no basis to disturb the administrative judge’s conclusion that the agency complied with the dictates of the FMLA. Indeed, on review, the appellant again generally references both the agency’s leave handbook and a litany of regulatory provisions, but fails to provide specific argument as to how the agency violated the same and/or which of the 77 specifications the alleged handbook/regulatory violations implicate. PFR File, Tab 1 at 4-6; see 5 C.F.R. § 1201.115(b). Moreover, as set forth in the initial decision, the appellant acknowledged at the hearing that he had failed to submit any leave requests for the dates underlying specifications 70-77, i.e., August 5, 2019, through August 15, 2019. ID at 18; IAF, Tab 10 at 99. These specifications, which totaled 76 hours of AWOL, are alone sufficient to sustain the agency’s charge.5 IAF, Tab 10 at 99; see Burroughs v. Department of the Army , 918 F.2d 170, 172 (Fed. Cir. 1990) (stating that, when more than one event or factual specification supports a single charge, proof of one or more, but not all, of the supporting 5 Moreover, with regards to specifications 42, 48-49, 61, and 67, which totaled 47.5 hours of AWOL, the administrative judge concluded that, although the appellant had argued that he was entitled to FMLA leave on the dates in question, the record reflected that he had actually been engaged in activities altogether unrelated to a scenario for which FMLA leave could permissibly be granted, to include attending court proceedings. ID at 22; IAF, Tab 10 at 97-98. The appellant does not challenge this finding on review. 6 specifications may be sufficient to sustain the charge). Thus, a different outcome is not warranted. Accordingly, we affirm the initial decision.6 NOTICE OF APPEAL RIGHTS7 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. 6 Although not raised by either party, in analyzing the appellant’s claims of discrimination and reprisal, the administrative judge referenced direct evidence and types of circumstantial evidence. ID at 25-26 n.14. However, insofar as we find no indication that she disregarded any evidence because of its direct or circumstantial nature, a different outcome is not warranted. See Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647, ¶ 30 (2016 ), clarified by Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 23-24. 7 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.7 Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case,8 and 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 9 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.8 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 8 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 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/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.11	Dandridge_ConradSF-0752-20-0568-I-1_Final_Order.pdf	2024-09-30	CONRAD DANDRIDGE v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-0752-20-0568-I-1, September 30, 2024	SF-0752-20-0568-I-1	NP
463	https://www.mspb.gov/decisions/nonprecedential/Litton_Matthew_C_DC-0752-14-0353-C-1_and_DC-0752-14-1110-C-1_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MATTHEW C. LITTON, Appellant, v. DEPARTMENT OF JUSTICE, Agency.DOCKET NUMBERS DC-0752-14-0353-C-1 DC-0752-14-1110-C-1 DATE: September 30, 2024 THIS ORDER IS NONPRECEDENTIAL1 Christine Kumar , Esquire, and Kristin Alden , Esquire, Washington, D.C., for the appellant. Drew Ambrose , Monica Hansen , Marisa C. Ridi , Esquire, and Chad Y. Tang , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member ORDER ¶1The appellant has filed a petition for review of a compliance initial decision that granted in part and denied in part his petition for enforcement of a Board 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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). order reversing two indefinite suspensions.2 In the same petition for review, the appellant challenges a compliance initial decision that denied his petition for enforcement of a Board order reversing his removal. After fully considering the filings in these appeals, we JOIN them under 5 C.F.R. § 1201.36(b) because doing so will expedite processing without adversely affecting the interests of the parties. Generally, we grant petitions such as these only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the appellant has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. We AFFIRM the initial decisions. We refer MSPB Docket No. DC -0752-14-0353-C-1 for compliance as set forth below. This is the Board’s final decision in MSPB Docket No. DC-0752-14- 1110-C-1. 5 C.F.R. § 1201.113(b). BACKGROUND ¶2On January 23, 2014, the appellant, a preference-eligible Special Agent with the agency’s Federal Bureau of Investigation (FBI), filed a Board appeal challenging two indefinite suspensions. Litton v. Department of Justice , MSPB 2 To the extent that the compliance initial decision granted the appellant’s petition for enforcement, the agency has submitted evidence and argument on the issue of its compliance with the administrative judge’s order. The agency’s submission has been docketed as a compliance referral and will be addressed in a separate decision. Litton v. Department of Justice , MSPB Docket No. DC -0752-14-0353-X-1.2 Docket No. DC-0752-14-0353-I-1, Initial Appeal File (0353 IAF), Tab 1 at 5. The first indefinite suspension, effective upon his receipt of a September 15, 2010 letter, was based on the agency’s assertion that there was reasonable cause to believe he had committed a crime for which a sentence of imprisonment could be imposed. Id. at 15. The second indefinite suspension, effective November 5, 2010, was based on the suspension of the appellant’s security clearance. 0353 IAF, Tab 1 at 7, 17. ¶3On January 24, 2012, the agency notified the appellant that it was reinstating his clearance, but that it would conduct an independent review to determine his suitability to maintain a clearance. 0353 IAF, Tab 3 at 24. The agency restored the appellant to a paid duty status on January 31, 2012. Litton v. Department of Justice , MSPB Docket No. DC-0752-14-0791-I-1, Initial Appeal File (0791 IAF), Tab 44 at 7, 68. ¶4However, on February 12, 2014, the agency again suspended the appellant’s security clearance. 0791 IAF, Tab 11 at 27. On April 17, 2014, the agency indefinitely suspended the appellant based on his failure to maintain a security clearance. Id. at 29-30. The letter stated that the clearance was suspended because of allegations that the appellant omitted certain medical information from his FBI SF-93 Report of Medical History and lacked candor during subsequent questioning about the matter. 0791 IAF, Tab 1 at 8-10, Tab 11 at 29. On June 13, 2014, the appellant filed a separate appeal challenging the third indefinite suspension. 0791 IAF, Tab 1. ¶5The administrative judge joined the two appeals. 0353 IAF, Tab 28; 0791 IAF, Tabs 9, 12. After the appellant withdrew his request for a hearing, 0353 IAF, Tab 56 at 4, the administrative judge issued an initial decision based on the written record, reversing the first and second indefinite suspensions and sustaining the third indefinite suspension, Litton v. Department of Justice , MSPB Docket Nos. DC-0752-14-0791-I-1, DC-0752-14-0353-I-1, Initial Decision at 8, 22, 28 (Aug. 11, 2016). The Board then affirmed the initial decision with3 modifications and ordered the agency to cancel the appellant’s first two indefinite suspensions and retroactively restore him effective September 15, 2010, through January 31, 2012. Litton v. Department of Justice , MSPB Docket Nos. DC-0752- 14-0791-I-1, DC-0752-14-0353-I-1, Final Order, ¶¶ 1, 31 (Oct. 11, 2022). The Board agreed with the administrative judge that the agency took the first and second indefinite suspensions without due process. Id., ¶¶ 5, 24-26. With respect to the first indefinite suspension, the Board also agreed that the agency violated the Rehabilitation Act of 1973 because the agency’s underlying medical inquiries in its SF-93 were overbroad. Id., ¶¶ 6, 12-19. The Board ordered 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.” Id., ¶ 32. ¶6The appellant then filed a petition for enforcement. Litton v. Department of Justice, MSPB Docket No. DC-0752-14-0353-C-1, Compliance File (0353 CF), Tab 1. The administrative judge found that the agency had canceled the suspensions. 0353 CF, Tab 15, Compliance Initial Decision (0353 CID) at 7. She also concluded that, contrary to the appellant’s claim, the agency was not required to pay back pay from September 14, 2010, through January 23, 2012, because the appellant’s security clearance was suspended during that time, and therefore, he was not available to perform the duties of his position, as required to receive back pay under 5 C.F.R. § 550.805(c)(2). 0353 CID at 7-9. The administrative judge acknowledged the appellant’s claims that two agency employees had been paid back pay under similar circumstances and that an agency directive entitled him to back pay, but found that the Board lacks the authority to review instances in which the agency, at its discretion, awarded more relief than legally required under the Back Pay Act, 5 U.S.C. § 5596. 0353 CID at 9-10. Because the appellant’s security clearance was reinstated on January 24, 2012, the administrative judge awarded him back pay from that date through January 31, 2012. 0353 CID at 11. 4 ¶7During the pendency of those appeals, on September 22, 2014, the appellant filed a third Board appeal challenging his September 10, 2014 removal. Litton v. Department of Justice , MSPB Docket No. DC-0752-14-1110-I-1, Initial Appeal File, Tab 1 at 3. On September 22, 2017, the administrative judge issued an initial decision reversing the removal and ordering the agency to provide the appellant with interim relief. Litton v. Department of Justice , MSPB Docket No. DC-0752-14-1110-I-2, Appeal File (1110 AF), Tab 72, Initial Decision at 2, 27, 29. On January 16, 2018, the agency revoked the appellant’s security clearance. Litton v. Department of Justice , MSPB Docket No. DC-0752-14-1110- I-2, Petition for Review (1110 PFR) File, Tab 28 at 8-11. On November 19, 2018, the agency denied his security clearance revocation appeal. Litton v. Department of Justice , MSPB Docket No. DC-0752-14-1110-C-1, Compliance File (1110 CF), Tab 4 at 683-86. On October 13, 2022, the Board affirmed the initial decision and ordered the agency to retroactively reinstate the appellant, effective September 10, 2014, and pay him the “correct amount of back pay, interest on back pay and other benefits under the Office of Personnel Management’s regulations.” Litton v. Department of Justice , MSPB Docket No. DC-0752-14-1110-I-2, Final Order, ¶¶ 1, 29-30 (Oct. 13, 2022). ¶8The appellant then filed a petition for enforcement of the final decision reversing his removal. 1110 CF, Tab 1. The administrative judge issued a compliance initial decision denying the petition. 1110 CF, Tab 12, Compliance Initial Decision (1110 CID) at 1, 10. The administrative judge concluded that the agency was not required to pay back pay in connection with the appellant’s September 2014 removal. 1110 CID at 8. She reasoned that his security clearance was suspended on February 12, 2014, and subsequently revoked on January 16, 2018. Id. Thus, she concluded that he did not have the security clearance necessary for his position and was not available to perform his duties. Id. She also found, among other things, that the Board lacks authority to consider claims that the agency’s security clearance process was flawed. Id. at 9. 5 ¶9The appellant has filed a petition for review.3 Litton v. Department of Justice, MSPB Docket No. DC-0752-14-0353-C-1, Compliance Petition for Review (0353 CPFR) File, Tabs 1, 5; Litton v. Department of Justice , MSPB Docket No. DC-0752-14-1110-C-1, Compliance Petition for Review (1110 CPFR) File, Tabs 1, 4. The agency has filed a response opposing the petition, and the appellant has replied. 0353 CPFR File, Tabs 9, 10; 1110 CPFR File, Tabs 8, 9. ANALYSIS The appellant is not entitled to back pay related to his first two indefinite suspensions from September 14, 2010, through January 23, 2012, when his security clearance was suspended. ¶10When the Board finds a personnel action unwarranted, the aim is to place the employee, as nearly as possible, in the situation he would have been in had the wrongful personnel action not occurred, i.e., the status quo ante. Tubesing v. Department of Health and Human Services , 115 M.S.P.R. 327, ¶ 5 (2010 ); Sink v. Department of Energy , 110 M.S.P.R. 153, ¶ 19 (2008); Black v. Department of Justice, 85 M.S.P.R. 650, ¶ 6 (2000). In particular, the agency must reinstate the appellant to his former position and duties absent a strong overriding interest or compelling reasons for not doing so. Tubesing, 115 M.S.P.R. 327, ¶ 5; LaBatte v. Department of the Air Force , 58 M.S.P.R. 586, 594 (1993). The agency bears the burden of proving its compliance with a Board order. Tubesing, 115 M.S.P.R. 327, ¶ 5. ¶11“In a suit against the United States, there cannot be a right to money damages without a waiver of sovereign immunity.” United States v. Testan , 3 The appellant has filed a single petition for review challenging the compliance initial decisions that we address here and the initial decision in Litton v. Department of Justice, MSPB Docket No. DC-0752-23-0016-I-1, Petition for Review (PFR) File, Tabs 5, 7-8. We grant the appellant’s request to join MSPB Docket Nos. DC-0752-14- 0353-C-1 and DC-0752-14-1110-C-1 because these appeals contain many of the same relevant facts and the petition for review submissions are the same. We deny the appellant’s joinder motion as it pertains to MSPB Docket No. DC-0752-23-0016-I-1. We will issue a separate decision in that matter.6 424 U.S. 392, 400 (1976). Therefore, the Board’s authority to award back pay must derive, if at all, from the Back Pay Act, a settlement agreement, or some other source, such as a collective bargaining agreement, that imposes on it the mandatory obligation to award back pay. Kelley v. Department of the Air Force , 50 M.S.P.R. 635, 639 (1991). Under the Back Pay Act, an employee who prevails in an adverse action appeal before the Board is generally entitled to back pay for the period for which the adverse action was in effect. 5 U.S.C. § 5596. However, under 5 C.F.R. § 550.805(c)(2), the back pay calculation may not include “[a]ny period during which an employee was unavailable for the performance of his or her duties for reasons other than those related to, or caused by, the unjustified or unwarranted personnel action.” ¶12In this case, it is undisputed that the appellant’s position required a security clearance and that the appellant’s clearance was suspended from September 14, 2010, through January 23, 2012. 0353 CID at 2, 8. The administrative judge found that, under 5 C.F.R. § 550.805(c)(2), the appellant was not entitled to back pay for this period because he was unavailable for duty for reasons unrelated to the indefinite suspensions. Id. at 7-8. ¶13On review, the appellant argues that 5 C.F.R. § 550.805(c)(2) does not apply to his situation because the suspension of his security clearance is related to the first two unwarranted indefinite suspensions. 0353 CPFR File, Tab 5 at 13-15. In support of this argument, the appellant cites to Martin v. Department of the Air Force, 184 F.3d 1366, 1371 (Fed. Cir. 1999), for the proposition that the Board must look to “the cause” of the employee’s unavailability “before excluding the period of time” from the back pay computation. 0353 CPFR File, Tab 5 at 15. However, Martin is inapplicable here because it involved an appellant’s inability to work due to an incapacitating injury, pursuant to 5 C.F.R. § 550.805(c)(1), and not because he was “unavailable for the performance of his . . . duties” because he did not possess a security clearance, pursuant to section 550.805(c)(2). Martin, 184 F.3d at 1370-72; see White v. Department of7 the Army, No. 2007-3135, 2007 WL 2914536 at *3 (Fed. Cir. Oct. 5, 2007) (distinguishing between 5 C.F.R. § 550.805(c)(1) and (c)(2)).4 ¶14In any event, we find that the relationship between the security clearance determination and the indefinite suspension is not of the type contemplated in the regulation. The security clearance suspension and the first indefinite suspension may have shared a cause (suspected criminal activity), but the actions were taken independently of one another. As for the second indefinite suspension, the security clearance suspension was the cause of that adverse action—not the other way around. As we interpret 5 C.F.R. § 550.805(c), its function is to ensure that an appellant’s receipt of a back pay award does not put him in a better position than he would have been in had the adverse action never occurred. See Washington v. Tennessee Valley Authority , 22 M.S.P.R. 377, 379 (1984) (“Cancellation of [an adverse action] is intended to make the appellant whole, but cannot be permitted to require a ‘windfall.’”). In this case, even if the agency had never suspended the appellant under 5 U.S.C. chapter 75, his security clearance would still have been suspended, and for that reason, he would have been unable to work. To award the appellant back pay for this period would place him in a better position than if the suspension had never occurred, and we find that the Back Pay Act and the Office of Personnel Management (OPM)’s implementing regulations prohibit such an award. ¶15Next, the appellant reargues that the agency’s practice in denying him back pay is “arbitrary and capricious” because it has paid back pay to other employees who were similarly situated. 0353 CF, Tab 13 at 5-10; 0353 CPFR File, Tab 5 at 19-21. Here, the appellant reasserts that he is entitled to back pay pursuant to FBI Policy Directive 0622D, which states that, in a situation like this one, in which an employee was indefinitely suspended unrelated to a proposed removal, the “[A]ssistant [D]irector of [the Human Resources Division] will review the 4 The Board may rely on nonprecedential decisions of the U.S. Court of Appeals for the Federal Circuit when it finds their reasoning persuasive, as we do here. Covington v. Department of the Interior , 2023 MSPB 5, ¶ 19 n.5.8 circumstances to determine whether back pay may be appropriate for the period of the indefinite suspense and make a decision on a case-by-case basis.” 0353 CF, Tab 1 at 27, 33; 0353 CPFR File, Tab 5 at 16-17. Similarly, FBI Policy Directive 0975D provides that when an indefinite suspension is not related to a proposed removal, an employee may submit a request for back pay to the Assistant Director, Human Resources Division, “who will review requests on a case-by-case basis.” 1110 CF, Tab 1 at 27. He argues that the agency’s policies do not make back pay contingent on the restoration of an employee’s security clearance and that the agency applies these policies “inconsistently.” 0353 CPFR File, Tab 5 at 18, 20. The administrative judge considered and rejected this argument, finding that, even if the agency applied its own directives for providing back pay in an “arbitrary and capricious manner” by providing some employees back pay and not others, this was nevertheless within the agency’s discretion. 0353 CID at 9. We find no reason to disturb the administrative judge’s conclusion that the Board’s authority to order back pay is governed by the Back Pay Act and 5 C.F.R. part 550, subpart H. Id. If the agency, within its discretion, chooses to provide a benefit beyond that provided for in the Back Pay Act or OPM’s implementing regulations, it is outside the Board’s reviewing authority.5 Id.; cf. Cronin v. U.S. Postal Service , 2022 MSPB 13, ¶¶ 15-20 (determining that OPM could not expand the bases for determining an agency acted arbitrarily and 5 Because the Board lacks authority to award back pay under the agency’s discretionary policies, we decline to address the appellant’s arguments concerning the administrative judge’s alternative finding that the agency’s payment of other individuals under allegedly comparable circumstances was due to agency error. 0353 CID at 9-10; 0353 CPFR File, Tab 5 at 19-22 & n.3, 24-26. Nor do we address the agency’s response arguing that neither policy is applicable and that FBI Policy Directive 0975 superseded FBI Policy Directive 0622. 0353 CPFR File, Tab 9 at 30-31. Further, a reply is limited to the factual and legal issues raised by another party in the response to the petition for review. Lin v. Department of the Air Force , 2023 MSPB 2, ¶ 8 n.4; 5 C.F.R. § 1201.114(a)(4). It may not raise new allegations of error. Lin, 2023 MSPB 2, ¶ 8 n.4; 5 C.F.R. § 1201.114(a)(4). Accordingly, we will not consider the appellant’s argument, raised for the first time in his reply, that he is entitled to back pay under the Rehabilitation Act in connection with his September 2010 indefinite suspension. 0353 CPFR File, Tab 10 at 10-12 & n.6.9 capriciously in denying a request for restoration to duty following an on -the-job injury to include greater obligations undertaken by the agency because Congress did not authorize OPM to redelegate OPM’s rulemaking authority). The appellant is not entitled to back pay in connection with his removal appeal. ¶16As explained above, the agency removed the appellant effective September 10, 2014. It is undisputed that the appellant’s security clearance was suspended on February 12, 2014, and thereafter revoked on January 16, 2018. 1110 CID at 8. In the compliance initial decision, the administrative judge found that, under 5 C.F.R § 550.805(c)(2), the appellant was not entitled to any back pay in connection with his removal because he did not have an active security clearance during any part of the back pay period. Id. at 7-10. ¶17On review, the appellant argues that 5 C.F.R § 550.805(c)(2) does not apply because his security clearance suspension and revocation were related to his removal. 1110 CPFR File, Tab 4 at 28-33. For the reasons discussed above, in connection with back pay for the indefinite suspensions, we disagree with this argument. Supra ¶ 14. ¶18The appellant also argues that the agency cannot rely on the January 2018 security clearance revocation to deny back pay related to his removal. 1110 CPFR File, Tab 4 at 46-54; 1110 CF, Tabs 4, 11. Specifically, he argues that the agency failed to comply with Executive Order 12968, 60 Fed. Reg. 40245 (Aug. 2, 1995), and its own regulations and policy when it failed to give him a comprehensive explanation of the basis for the security clearance revocation and provide documents, records, and reports upon which the revocation was based. Therefore, he asserts, the Board should conclude that the period of the revoked clearance is not a period of “unavailability” under 5 C.F.R. § 550.805(c)(2). 1110 CPFR File, Tab 4 at 46-54. ¶19We have considered the appellant’s argument, but we agree with the administrative judge that the Board lacks authority to review the agency’s security clearance revocation in the context of this petition for enforcement10 because the removal was not based on the revocation of the appellant’s security clearance. 1110 CID at 8-9. Similarly, to the extent that the appellant alleges for the first time on review that the agency is required to reinvestigate his security clearance every 5 years, the Board also lacks authority to consider that claim unless the agency has imposed an adverse action based on the security clearance revocation. 1110 CPFR File, Tab 4 at 54-57; see Schnedar v. Department of the Air Force, 120 M.S.P.R. 516, ¶ 8 (2014) (finding that the Board may review whether the agency complied with its own procedures in imposing an adverse action based on a security clearance determination). For the reasons discussed above, we agree with the administrative judge that the appellant is not entitled to back pay related to his September 20, 2014 removal because he was unavailable to perform the duties of his position due to his lack of a valid security clearance during the relevant backpay period, i.e., from September 20, 2014, to the present. 1110 CID at 7-8.6 Any failure by the agency to comply with the interim relief order is now moot. ¶20On review, the appellant reargues that he was entitled to interim relief related to his removal for the period beginning September 22, 2017, the date of the initial decision reversing his removal, through October 23, 2022, the date of the Board’s final decision affirming that initial decision and ordering his reinstatement. 1110 CF, Tab 1 at 5, Tab 11 at 7, 15; 1110 CPFR File, Tab 5 at 33-38. The administrative judge did not consider this claim below. The agency argues that the issue of interim relief is no longer properly before the Board because the appellant raised that issue in the petition for review of the removal appeal and the Board declined to dismiss the agency’s petition for review. 1110 CPFR File, Tab 8 at 43. We agree with the agency. 6 The appellant has a separate pending petition for review, Litton v. Department of Justice, MSPB Docket No. DC-0752-23-0016-I-1, in which he claims that the agency constructively suspended him by failing to return him to duty after his removal was reversed. We do not decide here whether the appellant would be entitled to any remedy should he prevail in that appeal. 11 ¶21There is no basis in a compliance proceeding for an administrative judge to consider assertions that an agency failed to provide interim relief. Owens v. Department of Transportation , 99 M.S.P.R. 377, ¶ 10 (2005); Boyd v. Department of Veterans Affairs , 93 M.S.P.R. 386, 389 n.2 (2003) (finding that allegations an agency failed to provide interim relief pertain to the merits of the case and are not before the Board in that compliance proceeding); LaBatte, 58 M.S.P.R. at 592-93 (stating that the only remedy for an agency’s failure to comply with an interim relief order is dismissal of the agency’s petition for review; interim relief is not at issue in a compliance proceeding). Once an appellant has received a final Board order on the merits in his favor, any question regarding the agency’s compliance with the interim relief order is moot. Gannon v. U.S. Postal Service, 61 M.S.P.R. 41, 48 (1994). ¶22Here, because the appellant has received a Final Order on the merits in his favor, we find that the issue of the agency’s compliance with the interim relief order is moot and subsumed in the Board’s Final Order. Specifically, in the Board’s Final Order, it declined to dismiss the agency’s petition for review based on the appellant’s claim that the agency failed to provide him with interim relief and instead denied the petition for review and affirmed, with modifications, the initial decision reversing the appellant’s removal. Litton, MSPB Docket No. DC- 0752-14-1110-I-2, Final Order, ¶ 9. The Board explained that “[i]f a dispute arises concerning the pay to which the appellant is entitled under the Board’s Final Order, the appellant may file, as indicated below, a petition for enforcement concerning that matter with the regional office.” Id.; see 5 C.F.R. § 1201.116(g) (providing that, if the initial decision granted the appellant interim relief and the appellant prevails in the final Board order disposing of a petition for review, then any interim relief enforcement motion filed will be treated as a motion for enforcement of the final decision under 5 C.F.R. § 1201.183). The Board’s Final Order provided that the agency is to “cancel the appellant’s removal and retroactively restore him effective September 10, 2014.” Litton, MSPB Docket12 No. DC-0752-14-1110-I-2, Final Order, ¶ 29. It further provided that the agency “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 [the] decision.” Id., ¶ 30 Thus, because the Board declined to dismiss the agency’s petition for review and instead denied it on the merits in the appellant’s favor, the issue of the agency’s noncompliance with the interim relief order is moot and the sole issue before us is whether the agency is in compliance with the Board’s Final Order. Gannon, 61 M.S.P.R. at 43. ¶23For the reasons described herein, we affirm the administrative judge’s conclusion that the appellant was not entitled to back pay related to his first two indefinite suspensions, from September 14, 2010, through January 23, 2012, or his September 10, 2014 removal, during any period in which his security clearance was suspended. Regarding the period January 24 through 30, 2012, when the appellant’s security clearance was active, the agency does not dispute that the appellant is entitled to back pay for those dates. The agency’s fulfillment of its back pay obligations for those dates will be addressed in a separate order, under MSPB Docket No. DC-0752-14-0353-X-1. ORDER ¶24This order does not constitute a final order as to MSPB Docket No. DC-0752-14-0353-C-1, and it is therefore not subject to judicial review under 5 U.S.C. § 7703(a)(1) regarding that matter. As stated above, some issues raised in the appellant’s petition for enforcement are being addressed separately in a compliance referral matter, under MSPB Docket No. DC-0752-14-0353-X-1. Upon final disposition of the compliance referral, a final order shall be issued in MSPB Docket Nos. DC-0752-14-0353-C-1 and DC-0752-14-0353-X-1, which shall be subject to judicial review. 13 ¶25This is the final decision of the Merit Systems Protection Board regarding the compliance proceedings in connection with the appellant’s 2014 removal under MSPB Docket No. DC-0752-14-1110-C-1. NOTICE OF APPEAL RIGHTS IN MSPB DOCKET NO. DC-0752-14-1110-C-17 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). 7 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.14 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case, and 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 on15 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or16 other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.8 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our 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. 17 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.18	Litton_Matthew_C_DC-0752-14-0353-C-1_and_DC-0752-14-1110-C-1_Order.pdf	2024-09-30	MATTHEW C. LITTON v. DEPARTMENT OF JUSTICE, MSPB Docket No. DC, September 30, 2024	DC	NP
464	https://www.mspb.gov/decisions/nonprecedential/Kearney_Dr._Keeshes_R_DC-1221-23-0405-W-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD KEESHES RAGLAND KEARNEY, Appellant, v. DEPARTMENT OF JUSTICE, Agency.DOCKET NUMBER DC-1221-23-0405-W-1 DATE: September 30, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Delshon Harding , Butner, North Carolina, for the appellant. Debbie Stevens and Michael O’Connell , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member* *Member Kerner recused himself and did not participate in the adjudication of this appeal. FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed her individual right of action (IRA) appeal for lack of jurisdiction. On petition for review, the appellant asserts, without supporting evidence or argument, that she established Board jurisdiction over her appeal. 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). Review (PFR) File, Tab 1 at 4. She also argues, among other things, that the administrative judge exhibited bias in favor of the agency, that he abused his discretion in granting the agency’s request to stay discovery deadlines and denying her motion to compel discovery, and that his rulings were inconsistent with the required Board procedures.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). 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). ¶2We find no merit in the appellant’s argument that the administrative judge was biased against her and abused his discretion by denying her motion to compel discovery and issuing an initial decision without allowing her the opportunity to respond to the agency’s motion to strike her motion to compel. PFR File, Tab 1 at 4-8. An administrative judge has broad discretion to regulate the proceedings before him, including the authority to rule on discovery motions, and absent an abuse of discretion, the Board will not reverse an administrative judge’s discovery related rulings. Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365, ¶ 16 (2016). Additionally, an appellant is not entitled to discovery in an IRA 2 The appellant also requests that the Board sanction the agency. PFR File, Tab 1 at 8. The appellant has not identified any behavior that would warrant the imposition of sanctions.2 appeal if she fails to raise a nonfrivolous allegation of Board jurisdiction. See Sobczak v. Environmental Protection Agency , 64 M.S.P.R. 118, 122 (1994) (stating that an appellant is entitled to discovery in an IRA appeal only when he sets forth nonfrivolous jurisdictional allegations). Further, there is a presumption of honesty and integrity on the part of administrative judges that can only be overcome by a substantial showing of personal bias, and the Board will not infer bias based on an administrative judge’s case-related rulings; a party’s disagreement with an administrative judge’s evidentiary rulings is insufficient to show bias. Vaughn v. Department of the Treasury , 119 M.S.P.R. 605, ¶ 18 (2013); Diggs v. Department of Housing and Urban Development , 114 M.S.P.R. 464, ¶ 9 (2010). ¶3Although the acknowledgment order provided the appellant with 5 calendar days to file a response or objection to any motion, Initial Appeal File (IAF), Tab 2 at 4, the administrative judge issued an order staying discovery pending a decision on the threshold jurisdictional issue in response to the parties’ requests, IAF, Tab 7 at 4-5, Tab 8 at 5, Tab 9 . Since the administrative judge ultimately concluded that the appellant failed to nonfrivolously allege Board jurisdiction over her IRA appeal, he denied her motion to compel discovery and instead issued the initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 14, Tab 17, Initial Decision at 2, 8 . Because we agree with the administrative judge’s determination that the appellant failed to meet her jurisdictional burden, we agree that, absent a ruling on the threshold jurisdictional issue, she was not entitled to conduct discovery. Thus, we conclude that the appellant has failed to prove that the administrative judge exhibited bias, abused his discretion, or committed a procedural error that harmed her substantive rights in his discovery- related rulings. See Vaughn, 119 M.S.P.R. 605, ¶ 15; see also Karapinka v. Department of Energy , 6 M.S.P.R. 124, 127 (1981) (finding that an administrative judge’s procedural error is of no legal consequence unless it is shown to have adversely affected a party’s substantive rights).3 ¶4Accordingly, we affirm the initial decision. NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case, and 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 any5 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s6 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of 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/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Kearney_Dr._Keeshes_R_DC-1221-23-0405-W-1_Final_Order.pdf	2024-09-30	KEESHES RAGLAND KEARNEY v. DEPARTMENT OF JUSTICE, MSPB Docket No. DC-1221-23-0405-W-1, September 30, 2024	DC-1221-23-0405-W-1	NP
465	https://www.mspb.gov/decisions/nonprecedential/Litton_Matthew_C_DC-0752-23-0016-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MATTHEW C. LITTON, Appellant, v. DEPARTMENT OF JUSTICE, Agency.DOCKET NUMBER DC-0752-23-0016-I-1 DATE: September 30, 2024 THIS ORDER IS NONPRECEDENTIAL1 Christine Kumar , Esquire, and Kristin Alden , Esquire, Washington, D.C., for the appellant. Drew Ambrose , Monica Hansen , Chad Y. Tang , Esquire, and Marisa C. Ridi , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member REMAND ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed his indefinite suspension appeal for lack of jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition for review, 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). VACATE the initial decision, and REMAND the case to the regional office for further adjudication in accordance with this Remand Order. BACKGROUND ¶2On January 23, 2014, the appellant, a preference-eligible Special Agent with the agency’s Federal Bureau of Investigation (FBI), filed a Board appeal challenging two indefinite suspensions. Litton v. Department of Justice , MSPB Docket No. DC-0752-14-0353-I-1, Initial Appeal File (0353 IAF), Tab 1 at 5. On February 12, 2014, the agency advised the appellant that it was suspending his Top Secret security clearance. Litton v. Department of Justice , MSPB Docket No. DC-0752-14-0791-I-1, Initial Appeal File (0791 IAF), Tab 11 at 27. On February 27, 2014, the agency proposed the appellant’s indefinite suspension based on his failure “to meet an essential condition of employment,” namely, maintaining his Top Secret security clearance and access to classified information. Id. at 29-30. The letter stated that the reason for the suspension of his security clearance was failure to disclose certain information to the agency and lack of candor. Id. at 29. The letter also informed the appellant that this suspension would be in effect “pending the final resolution of all security actions including investigation, adjudication, and any related appeals regarding [his] eligibility for access to classified information, and/or a determination of whether or not further administrative action is warranted.” Id. at 9. ¶3On June 13, 2014, the appellant filed a second appeal challenging the third indefinite suspension, which became effective April 17, 2014. 0791 IAF, Tab 1 at 8, 9-10. The administrative judge joined the first and second indefinite suspension appeals. 0353 IAF, Tab 28; 0791 IAF, Tabs 9, 12. As relevant here, after the appellant withdrew his request for a hearing, the administrative judge sustained the April 17, 2014 indefinite suspension. 0353 IAF, Tab 56 at 4; Litton v. Department of Justice , MSPB Docket Nos. DC-0752-14-0791-I-1, DC-0752- 14-0353-I-1, Initial Decision at 8, 22, 28 (Aug. 11, 2016) . The Board then2 affirmed the initial decision as modified by the final decision. Litton v. Department of Justice , MSPB Docket Nos. DC-0752-14-0791-I-1, DC-0752-14- 0353-I-1, Final Order ¶¶ 1, 31 (Oct. 11, 2022). ¶4In the meantime, on September 22, 2014, the appellant filed a Board appeal, challenging his removal from the agency, effective September 10, 2014, based on his alleged lack of candor and misleading statements. Litton v. Department of Justice, MSPB Docket No. DC-0752-14-1110-I-1, Initial Appeal File (1110 IAF), Tab 1 at 3. On September 22, 2017, the administrative judge issued an initial decision reversing the removal and ordering the agency to provide the appellant with interim relief. Litton v. Department of Justice , MSPB Docket No. DC-0752- 14-1110-I-2, Appeal File, Initial Decision, Tab 72 at 2, 27, 29. On January 16, 2018, the agency revoked the appellant’s security clearance. Litton v. Department of Justice , MSPB Docket No. DC-0752-14-1110-I -2, Petition for Review File, Tab 28 at 8-11. On November 19, 2018, the agency denied his request for reconsideration of his security clearance revocation. Litton v. Department of Justice , MSPB Docket No. DC-0752-14-1110-C-1, Compliance File, Tab 4 at 683-86. On October 13, 2022, the Board affirmed the initial decision and ordered the agency to retroactively reinstate the appellant, effective September 10, 2014, and pay the appellant the “correct amount of back pay, interest on back pay and other benefits under the Office of Personnel Management’s regulations.” Litton v. Department of Justice , MSPB Docket No. DC-0752-14-1110-I-2, Final Order, ¶¶ 1, 29-30 (Oct. 13, 2022). ¶5In the Board’s Final Order in the appellant’s removal appeal, the Board forwarded to the regional office the appellant’s claim that he was constructively indefinitely suspended beginning on September 22, 2017, when he was not returned to duty. Litton, MSPB Docket No. DC-0752-14-1110-I-2, Final Order ¶¶ 1, 8. The regional office docketed the instant appeal. Litton v. Department of Justice, MSPB Docket No. DC-0752-23-0016-I-1, Initial Appeal File (0016 IAF), Tab 4. 3 ¶6The assigned administrative judge dismissed the appeal for lack of jurisdiction, finding that the appellant did not make a nonfrivolous allegation of jurisdiction entitling him to the jurisdictional hearing he requested. 0016 IAF, Tab 2 at 2, Tab 13, Initial Decision (0016 ID) at 1, 9-10. She observed that an administrative judge had sustained the appellant’s April 17, 2014 indefinite suspension in a prior appeal, and the Board had affirmed that initial decision. 0016 ID at 7 n. 3. She held that the condition subsequent for ending that suspension, i.e., the final resolution of the appellant’s security clearance “and/or” a determination on whether further administrative action was warranted, had not yet taken place. 0016 ID at 8. Thus, she concluded that the April 17, 2014 suspension was still in place upon the appellant’s reinstatement to employment on September 22, 2017, and therefore, the agency did not subject him to a new indefinite suspension when it implemented the interim relief order by returning the appellant to nonpay status upon his reinstatement. 0016 ID at 8-9. ¶7The appellant has filed a petition for review. Litton v. Department of Justice, MSPB Docket No. DC-0752-23-0016-I-1, Petition for Review (0016 PFR) File, Tabs 1, 8. The agency has opposed the appellant’s petition, and the appellant has filed a reply. 0016 PFR File, Tabs 12, 13.2 2 The appellant filed a single petition for review challenging the initial decision here, the compliance initial decision in MSPB Docket No. DC-0752-14-0353-C-1, and the compliance initial decision in MSPB Docket No. DC-0752-14-1110-C-1; wherein, he moved to join all three cases. 0016 PFR File, Tab 5; 0353 CPFR File, Tabs 1, 4; 1110 CPFR File, Tabs 1, 4. We addressed this joinder motion in our decision in Litton v. Department of Justice , MSPB Docket Nos. DC-0752-14-0353-C-1, DC-0752-14- 1110-C-1, Order (Sept. 30, 2024), granting his request as to MSPB Docket Nos. DC- 0752-14-0353-C-1 and DC-0752-14-1110-C-1, and issuing a single decision for those appeals, and denying it as to the instant matter, which we are remanding to the regional office for further adjudication in this separately issued decision. We decline to revisit that determination here.4 DISCUSSION OF ARGUMENTS ON REVIEW We reverse the administrative judge’s finding that the appellant did not make a nonfrivolous allegation of jurisdiction over his claim that he was indefinitely suspended. ¶8On review, the appellant reargues that, following the September 22, 2017 initial decision reversing his removal, the agency subjected him to a new indefinite suspension when it failed to return him to duty and instead placed him in a nonpay status. 0016 IAF, Tab 9 at 15; 0016 PFR File, Tab 8 at 38-43. He challenges the administrative judge’s finding that this action was not a new indefinite suspension but rather a continuation of the valid April 17, 2014 indefinite suspension in effect at the time of his removal. 0016 ID at 8-9; 0016 PFR File, Tab 8 at 38-43. He asserts that the condition subsequent required to end his April 17, 2014 indefinite suspension, i.e., the final resolution of his security clearance, was met at the latest when his security clearance was revoked. 0016 IAF, Tab 9 at 13-15; 0016 PFR File, Tab 8 at 41-43. He argues that therefore, when the agency reinstated him in an indefinite suspension status, without providing him notice and an opportunity to respond, it violated his due process rights. 0016 IAF, Tab 9 at 15; 0016 PFR File, Tab 8 at 38-43. For the following reasons, we find that the appellant has made a nonfrivolous allegation that the agency continued his indefinite suspension without due process following its removal decision. ¶9When a suspension continues after the condition subsequent that would terminate it, the continuation of the suspension is a reviewable agency action separate from the imposition of the suspension itself. Sikes v. Department of the Navy, 2022 MSPB 12, ¶ 7 (citing Rhodes v. Merit Systems Protection Board , 487 F.3d 1377, 1381 (Fed. Cir. 2007) (recognizing that “the agency’s failure to terminate an indefinite suspension after a condition subsequent is a separately reviewable agency action”)). The Board’s role in an appeal alleging an impermissible continuation of an indefinite suspension is limited to reviewing5 whether the condition subsequent identified by the agency has occurred and whether the agency acted within a reasonable amount of time to terminate the suspension following the satisfaction of the condition subsequent. Freeze v. Department of the Navy , 122 M.S.P.R. 179, ¶ 10 (2015). If an appellant alleges facts sufficient to support a prima facie allegation of jurisdiction, then the issue cannot be summarily determined without a hearing. Jones v. U.S. Postal Service , 55 M.S.P.R. 491, 492-94 (1992) (concluding that an appellant was entitled to a hearing on his claim that his employing agency failed to provide notice that he was to return to work following the imposition of an indefinite suspension, thereby extending his absence beyond 14 days). ¶10Under an Office of Personnel Management (OPM) regulation, an indefinite suspension “ends with the occurrence of the pending conditions set forth in the notice of action.” 5 C.F.R. § 752.402. In its April 17, 2014 letter of decision suspending the appellant from work, the agency stated that his suspension would be in effect until “final resolution of all security actions . . . and any related appeals . . . , and/or a determination of whether or not further administrative action is warranted. 0016 IAF, Tab 5 at 11. The use of the phrase “and/or” is ambiguous but generally connotes a disjunctive meaning. See Encino Motorcars, LLC v. Navarro , 584 U.S. 79, 87 (2018) (stating that “or” is “almost always disjunctive”) (citation omitted); Maibaum v. Department of Veterans Affairs , 116 M.S.P.R. 234, ¶ 10 n.2 (2011) (recognizing that the word “or” has both an inclusive sense and an exclusive sense) (citations omitted); 1A Norman Singer, Sutherland Statutes & Statutory Construction § 21:14 & n.20 (7th ed. 2023) (citations omitted) (stating that the use of the phrase “and/or” in legislation causes confusion). In other words, the language suggests, but does not clearly state, that the agency would end the appellant’s indefinite suspension upon the final resolution to his challenge to the agency’s suspension of his security clearance or its determination as to whether to take further “administrative action.”6 ¶11When an agency identifies alternative conditions that will end an indefinite suspension, the indefinite suspension terminates upon the occurrence of the first of those conditions. See Campbell v. Defense Logistics Agency , 31 M.S.P.R. 691, 693-94 (1986) (explaining that the agency properly waited to terminate an indefinite suspension until the first of several alternative subsequent conditions had been met), aff’d, 833 F.2d 1024 (Fed. Cir. 1987). For example, in cases in which the condition subsequent is framed as the resolution of the criminal charges “and/or” the resolution of discipline, the suspension remains valid until the indictment against the appellant is dismissed. Jarvis v. Department of Justice , 45 M.S.P.R. 104, 110 (1990). Once the indictment is dismissed, the indefinite suspension may be continued only for a reasonable time while the agency acts expeditiously to initiate an adverse action. Id. at 111. ¶12A condition subsequent can include “the completion of any subsequent administrative action.” 5 C.F.R. § 752.402. OPM does not define the meaning of “administrative action.” However, the Board has interpreted the term to include disciplinary action. E.g., Welch v. Department of Justice , 106 M.S.P.R. 107, ¶ 5 (2007) (finding an appellant should have been restored to his position after criminal charges against him were dismissed because the agency did not contemplate effecting any further disciplinary action in the foreseeable future). Although the agency did not remove the appellant based on the suspension of his security clearance, its removal was based on the same underlying incidents and charges that the agency cited to justify suspending the appellant’s eligibility for a security clearance. 0791 IAF, Tab 11 at 29; 1110 IAF, Tab 10 at 4. ¶13Based on the record before us, we conclude that the appellant has made a nonfrivolous allegation of jurisdiction. Specifically, if we take as true that the appellant’s removal was an “administrative action” that satisfied one of two alternative conditions subsequent, the Board would have jurisdiction over the alleged continuation of the appellant’s indefinite suspension. However, we cannot resolve the issue because the record is not fully developed as to whether7 “and/or” in the April 2014 letter is conjunctive or disjunctive. The record also is not developed as to whether the term “administrative action” in the suspension decision means disciplinary action based on the underlying facts of the indefinite suspension or disciplinary action based on the appellant’s anticipated loss of security clearance eligibility. Therefore, we remand this appeal for further development of these issues, including holding a jurisdictional hearing. ¶14Relevant evidence might include, but is not limited to, evidence related to the deciding official’s intent, information concerning applicable agency policy and how the agency has applied that policy in the past, and the agency’s typical process in these types of situations. In light of our remand of this matter, we deny the agency’s motion to submit an additional pleading to address the appellant’s claim that the other alternative conditions subsequent, the “final resolution of all security actions . . . and any related appeals,” was satisfied when he did not appeal the agency’s November 2018 denial of his request for reconsideration of his security clearance revocation. 0016 PFR File, Tabs 15, 17. Similarly, we decline to address here the appellant’s allegations that, for various reasons, his April 2014 indefinite suspension ended in September 2014, April 2016, or January 2018. 0016 PFR File, Tab 8 at 40-43. The parties may wish to submit evidence on these issues on remand, consistent with the orders of the administrative judge. ¶15In the context of an indefinite suspension based on the suspension of a security clearance, the Board may review, as relevant here, whether the agency afforded the appellant minimum due process. Palafox v. Department of the Navy , 124 M.S.P.R. 54, ¶ 8 (2016). An agency’s failure to provide a tenured public employee with an opportunity to present a response, either in person or in writing, to an appealable agency action that deprives him of his property right in his employment constitutes an abridgement of his constitutional right to minimum due process of law, i.e., prior notice and an opportunity to respond. Cleveland Board of Education v. Loudermill , 470 U.S. 532, 546 (1985). If the8 administrative judge determines that the agency was required to end the appellant’s indefinite suspension when it issued its removal decision, she must reverse the continuation of the appellant’s suspension due to the lack of the constitutionally required notice. Martin v. U.S. Postal Service , 2022 MSPB 22, ¶ 8 (explaining that because such constructive suspensions are often implemented without notice, if an appellant establishes jurisdiction, the Board will reverse the agency’s action on due process grounds without proceeding to the merits). ¶16We have considered whether this claim is moot because the appellant cannot receive back pay under the Back Pay Act for periods when his security clearance is suspended or revoked, as we have addressed in connection with our decision in Litton v. Department of Justice , MSPB Docket Nos. DC-0752-14-0353-C-1, DC- 0752-14-1110-C-1, Order, ¶ 11 (Sept. 30, 2024). However, when, as here, an appellant has an outstanding claim of compensatory damages based on discrimination, even an agency’s complete rescission of the action appealed does not afford him all of the relief available before the Board, and the appeal is not moot. 0116 IAF, Tab 2 at 6-7; see Sabio v. Department of Veterans Affairs , 124 M.S.P.R. 161, ¶ 3 n.1 (2017). Because the issue is not yet before us, we do not resolve here whether this case involves a set of facts that allows the Board to address the appellant’s discrimination claim without interfering with the agency’s security clearance determination. Helms v. Department of the Army , 114 M.S.P.R. 447, 451 n.* (2010). 9 ORDER ¶17For the reasons discussed above, we remand this case to the Washington Regional Office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.10	Litton_Matthew_C_DC-0752-23-0016-I-1_Remand_Order.pdf	2024-09-30	MATTHEW C. LITTON v. DEPARTMENT OF JUSTICE, MSPB Docket No. DC-0752-23-0016-I-1, September 30, 2024	DC-0752-23-0016-I-1	NP
466	https://www.mspb.gov/decisions/nonprecedential/Young_ChariseAT-1221-21-0282-W-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CHARISE YOUNG, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER AT-1221-21-0282-W-1 DATE: September 30, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Charise Young , McDonough, Georgia, pro se. Timothy M. O’Boyle , Esquire, Hampton, Virginia, for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman Henry J. Kerner , Member* *Member Kerner recused himself and did not participate in the adjudication of this appeal. FINAL ORDER 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 on the grounds that she failed to prove that she exhausted her administrative 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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). remedies with the Office of Special Counsel (OSC) before filing her IRA appeal with the Board. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to find that, although the appellant proved that she exhausted before OSC her claims of reprisal for disclosing a hostile work environment and filing an equal employment opportunity (EEO) complaint, she failed to nonfrivolously allege that she made a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in a protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), we AFFIRM the initial decision. BACKGROUND The appellant was employed by the agency as a Human Resources Assistant. Initial Appeal File (IAF), Tab 1 at 7. By letter dated June 15, 2020, the agency denied the appellant a within -grade increase (WIGI) due July 5, 2020, based on her unacceptable performance. IAF, Tab 1 at 7, Tab 7 at 6-17. Thereafter, the appellant filed a complaint with OSC. IAF, Tab 1 at 8-10. By letters dated March 12, 2021, OSC advised the appellant that it had terminated its investigation into her complaint and that she could seek corrective action with the2 Board. Id. OSC described the appellant’s complaint as alleging that the agency retaliated against her for reporting a hostile work environment and for filing an EEO complaint by lowering her performance rating and proposing her removal. Id. at 9. On March 15, 2021, the appellant filed an appeal with the Board, alleging that the agency proposed her removal based on medical disability and denied her a WIGI. Id. at 5. She indicated that the latter action was in retaliation for her prior EEO activity. Id. She did not describe the allegations she raised in her OSC complaint, but she stated that she had done so and attached copies of OSC’s final determination and close -out letters. Id. at 4, 8-10. The administrative judge issued an order, notifying the appellant of the elements and burdens of proof to establish Board jurisdiction over an IRA appeal and directing her to file evidence and argument on that issue. IAF, Tab 3. The appellant did not respond to the administrative judge’s order, and the agency filed a motion to dismiss the appeal. IAF, Tab 7 at 4. The administrative judge also ordered the agency to supplement the record with evidence, if any, that the appellant had requested reconsideration of her WIGI denial and that the agency had issued a reconsideration decision. IAF, Tab 8. The agency responded that the appellant had filed a grievance regarding her WIGI denial but she had not requested reconsideration. IAF, Tab 9 at 4. The appellant replied that she had requested that the agency “reconsider[]” her WIGI denial in the EEO process. IAF, Tab 10 at 3-5. Without holding the appellant’s requested hearing, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction on the grounds that the appellant failed to exhaust her administrative remedies with OSC. IAF, Tab 1 at 2, Tab 13, Initial Decision (ID) at 1, 4. The administrative judge noted that the OSC close-out letter did not identify a WIGI denial as a personnel action raised by the appellant and that, because the appellant failed to respond to the jurisdictional order, there was no other evidence that she raised a WIGI denial with OSC. ID at 3. Additionally, the administrative judge found3 that, while the appellant alleged to OSC that the agency lowered her performance rating and proposed her removal because of her EEO activity, she did not raise those personnel actions in this appeal. Id. The administrative judge found that, even if the appellant had raised those personnel actions in this appeal, the Whistleblower Protection Enhancement Act of 2012 (WPEA) does not extend to reprisal for filing EEO complaints. Id. Finally, the administrative judge determined that, to the extent the appellant was attempting to appeal her WIGI denial as an otherwise appealable action, under 5 U.S.C. § 5335(c), the appellant failed to substantiate her claim that she had requested reconsideration from the agency. ID at 3 n.1. The appellant has filed a petition for review of the initial decision. Petition for Review (PFR) File, Tab 1. She asserts that she submitted a request for reconsideration of her WIGI denial to her second-line supervisor and then appealed the decision to an agency official, specifically, to the Deputy Executive Director of the agency’s Human Resources Operations Office (HROO).2 Id. at 4; IAF, Tab 9 at 11. She asserts that the agency lowered her performance rating in reprisal for a hostile work environment disclosure and delayed her reassignment and proposed her removal in reprisal for an EEO complaint. PFR File, Tab 1 at 4-7. She also asserts that the agency approved some training with the expectation of failure, denied her additional training and reasonable accommodation, subjected her work to higher scrutiny than other employees in the same position, and delayed her reassignment to a different position. Id. at 5-7. Finally, she argues the merits of the agency’s actions, including that the agency did not provide her an opportunity to improve her performance and had insufficient evidence to support any performance issues. Id. at 5-6. The agency has not filed a response. 2 We note that the appellant refers to the HROO Deputy Executive Director by a different title (Deputy Assistant Chief). PFR File, Tab 1 at 4. For clarity and consistency, we have used the title of Deputy Executive Director reflected elsewhere in the record. IAF, Tab 9 at 11.4 DISCUSSION OF ARGUMENTS ON REVIEW Under the WPEA, the Board has jurisdiction over an IRA appeal if the appellant has exhausted her administrative remedies before OSC and makes nonfrivolous allegations of the following: (1) she made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the protected disclosure or activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a). Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). A nonfrivolous allegation is an assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s). The U.S. Court of Appeals for the Federal Circuit has found that, in the context of an IRA appeal, a nonfrivolous allegation is an allegation of “sufficient factual matter, accepted as true, to state a claim that is plausible on its face.” Hessami v. Merit Systems Protection Board , 979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020). We modify the initial decision to find that the appellant proved that she exhausted an alleged protected disclosure, an alleged protected activity, and two alleged personnel actions before OSC. Under 5 U.S.C. § 1214(a)(3), an appellant is required to “seek corrective action from [OSC] before seeking corrective action from the Board” through an IRA appeal. Miller v. Federal Deposit Insurance Corporation , 122 M.S.P.R. 3, ¶ 6 (2014), aff’d, 626 F. App’x 261 (Fed. Cir. 2015). The Board, in Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶¶ 10-11, clarified the substantive requirements of exhaustion. The requirements are met when an appellant has provided OSC with a sufficient basis to pursue an investigation. The Board’s jurisdiction is limited to those issues that were previously raised with OSC. However, appellants may give a more detailed account of their whistleblowing activities before the Board than they did to OSC. Id. Appellants may demonstrate exhaustion through their initial OSC complaint; evidence that they amended the original complaint, including but not limited to OSC’s5 determination letter and other letters from OSC referencing any amended allegations; and their written responses to OSC referencing the amended allegations. Id. Appellants also may establish exhaustion through other sufficiently reliable evidence, such as an affidavit or a declaration attesting that they raised with OSC the substance of the facts in the Board appeal. Id. The administrative judge found that the appellant exhausted with OSC the two alleged personnel actions of her lowered performance rating and proposed removal. ID at 3. We agree. Here, the appellant attached two OSC letters to her appeal form. IAF, Tab 1 at 8-10. Despite receiving detailed instructions from the administrative judge on how to establish Board jurisdiction, IAF, Tab 3 at 7-8, the appellant did not provide any additional evidence of exhaustion with OSC. Thus, in addressing that issue, we rely on the two OSC response letters. As noted above, OSC described the appellant’s complaint as alleging that the agency retaliated against her for reporting a hostile work environment and for filing an EEO complaint by lowering her performance rating and proposing her removal. IAF, Tab 1 at 9. While the administrative judge did not address whether the appellant had exhausted any protected disclosures or activities, we find that she exhausted those matters identified by OSC, i.e., an alleged disclosure of a hostile work environment and filing an EEO complaint. IAF, Tab 1 at 9. While the administrative judge acknowledged the appellant’s two exhausted personnel actions of a lower performance rating and a proposed removal, he found that she was not raising those matters in this appeal. ID at 3. We need not determine whether the administrative judge was correct regarding the nature of the appellant’s claims below because the appellant has specifically raised these two exhausted personnel actions on review. PFR File, Tab 1 at 4-6. Because the issue of the Board’s jurisdiction is always before the Board and may be raised at any time, Stoglin v. Department of the Air Force , 123 M.S.P.R. 163,6 ¶ 7 (2015), aff’d per curiam , 640 F. App’x 864 (Fed. Cir. 2016), we will consider them for the first time here.3 On review, the appellant alleges for the first time that the agency took the following personnel actions: denying or providing her inadequate training, denying her reasonable accommodation, scrutinizing her work, and delaying her reassignment. PFR File, Tab 1 at 4-7. She reasserts that the agency denied her WIGI. Id. at 4-6; IAF, Tab 1 at 5. As to her WIGI denial, we agree with the administrative judge that the Board lacks jurisdiction over that claim. ID at 3. As he correctly observed, the appellant provided no evidence she raised that claim before OSC. Id.; IAF, Tab 1 at 9. The lowering of the appellant’s performance rating and the proposal of her removal were the only two personnel actions she proved that she identified before OSC. IAF, Tab 1 at 9. Although the appellant indicates that the agency subjected her to additional personnel actions, such as denying or providing her inadequate training, denying her reasonable accommodation, scrutinizing her work, and delaying her reassignment, PFR File, Tab 1 at 4-7, she did not allege or provide any evidence that she raised those actions with OSC. The burden of proving OSC exhaustion rests with the appellant, and the Board may consider only those protected disclosures and activities and those personnel actions that the appellant first raised with OSC. See Mason v. Department of Homeland Security , 116 M.S.P.R. 135, ¶¶ 7-8 (2011). Based on our review of the record, we find that the appellant has failed to prove that she exhausted her alleged personnel actions other than the lowered performance rating and proposed removal. Therefore, we do not have jurisdiction to consider her other alleged personnel actions here. 3 A proposed removal is a threatened personnel action under 5 U.S.C. § 2302(a)(2)(A) (iii) and (b)(8). See Grubb v. Department of the Interior , 96 M.S.P.R. 361, ¶ 25 (2004). In addition, a performance rating is a personnel action under 5 U.S.C. § 2302(a)(2)(A) (viii). See Rumsey v. Department of Justice , 120 M.S.P.R. 259, ¶ 16 (2013).7 The appellant failed to nonfrivolously allege that she made a protected disclosure under 5 U.S.C. § 2302(b)(8). We next turn to the issue of whether the appellant nonfrivolously alleged that she made a protected disclosure or engaged in a protected activity. A protected disclosure is a disclosure of information that the appellant reasonably believes evidences any violation of 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); Bradley v. Department of Homeland Security , 123 M.S.P.R. 547, ¶ 7 (2016). At the jurisdictional stage, the appellant only is burdened with making a nonfrivolous allegation that she reasonably believed that her disclosure evidenced one of the circumstances described in 5 U.S.C. § 2302(b)(8). Bradley, 123 M.S.P.R. 547, ¶ 7. The proper test for determining whether an employee had a reasonable belief that her disclosures were protected is whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the disclosure evidenced one of the circumstances described in 5 U.S.C. § 2302(b)(8). Bradley, 123 M.S.P.R. 547, ¶ 7. On review, the appellant asserts that the agency lowered her performance rating in reprisal for reporting that her rating supervisor created a hostile work environment. PFR File, Tab 1 at 4. However, she does not provide pertinent details, such as what, specifically, she stated was hostile about her working environment, to whom she made this disclosure, and when she made it. The agency’s submissions below contain a grievance filed by the appellant after the agency denied her WIGI and proposed her removal. IAF, Tab 9 at 7-8. In that grievance, she referenced a complaint of a hostile work environment that she reported to the Veterans Health Administration Servicing Human Resources Office (VSHO) Director and Deputy Director sometime prior to August 30, 2019. Id. at 8. She indicated that her employing agency referred her complaint to an8 outside agency for investigation, but she provided no details as to the nature of her complaint. Id. We find that this disclosure, as alleged, is too vague to rise to the level of a nonfrivolous allegation that would merit a finding of the Board’s jurisdiction.4 See El v. Department of Commerce, 123 M.S.P.R. 76, ¶¶ 6-8 (2015) (finding that vague, conclusory, unsupported, and pro forma allegations of alleged wrongdoing do not meet the nonfrivolous pleading standard needed to establish the Board’s jurisdiction over an IRA appeal), aff’d per curiam , 663 F. App’x 921 (Fed. Cir. 2016); Keefer v. Department of Agriculture , 82 M.S.P.R. 687, ¶ 10 (1999) (stating that conclusory allegations lacking in specificity that the appellant has made protected disclosures do not constitute a nonfrivolous allegation of jurisdiction in an IRA appeal). We affirm the administrative judge’s determination that the appellant failed to nonfrivolously allege that her EEO activity constituted a protected activity. On review, the appellant asserts that the agency proposed her removal in reprisal for filing an EEO complaint. PFR File, Tab 1 at 5. The administrative judge found that the WPEA does not extend to reprisal for filing EEO complaints. ID at 3. We modify the initial decision to provide additional support for the administrative judge’s finding. Since the initial decision was issued in this case, we have analyzed the very issue presented here, i.e., whether the WPEA changed the longstanding principle that activity and disclosures protected under Title VII and the Rehabilitation Act are not protected under 5 U.S.C. § 2302(b)(8). We concluded that it did not. Edwards v. Department of Labor , 2022 MSPB 9, ¶¶ 21-23; McCray v. 4 We have separately considered whether, regardless of the content of her disclosure, her complaint was a protected activity under 5 U.S.C. § 2302(b)(9)(C). That provision defines protected activities to include disclosures to an agency “component responsible for internal investigation and review.” The content of the disclosures is not determinative of whether the complaint is protected. Fisher v. Department of the Interior, 2023 MSPB 11, ¶ 8. However, without any additional details, we cannot discern whether the appellant’s complaint was made to a component responsible for investigation or review, and therefore, we find that she has failed to nonfrivolously allege that her unspecified hostile work environment complaint was a protected activity.9 Department of the Army , 2023 MSPB 10, ¶¶ 21-22. Nonetheless, the appellant’s activity may be protected under 5 U.S.C. § 2302(b)(9). Edwards, _2022 MSPB 9, ¶¶ 24-25. Specifically, under 5 U.S.C. § 2302(b)(9)(A), it is a protected activity to exercise “any appeal, complaint, or grievance right granted by any law, rule, or regulation—(i) with regard to remedying a violation of [5 U.S.C. § 2302(b)(8)]; or (ii) other than with regard to remedying a violation of [5 U.S.C. § 2302(b) (8)].” However, of the two provisions, an employee or applicant for employment may seek corrective action from the Board only for protected activity under 5 U.S.C. § 2302(b)(9)(A)(i). 5 U.S.C. § 1221(a) The record does not contain a copy of the appellant’s EEO complaint. The appellant briefly noted on review that her EEO complaint pertained to her reassignment and reconsideration of her WIGI denial. PFR File, Tab 1 at 4. She did not allege or provide any evidence that she sought to remedy reprisal for a violation of 5 U.S.C. § 2302(b)(8) in her EEO complaint, and thus, she failed to nonfrivolously allege that her EEO complaint was protected activity within the Board’s IRA jurisdiction. The Board lacks jurisdiction over the appellant’s WIGI denial as an otherwise appealable action. When an agency determines that an employee is not performing at an acceptable level of competence and that a WIGI should be withheld, the employee is entitled to “prompt written notice of that determination . . . and an opportunity for reconsideration.” 5 U.S.C. § 5335(c). An employee may seek reconsideration of a WIGI denial in writing within 15 days of receiving the determination from the agency. 5 C.F.R. § 531.410(a)(1). The time limit to request reconsideration may be extended, however, if the employee shows that she was not notified of the time limit and was not otherwise aware of it. 5 C.F.R. § 531.410(b). If the agency affirms its determination on reconsideration, an employee may appeal to the Board. 5 U.S.C. § 5335(c); 5 C.F.R. § 531.410(d). The Board can also exercise jurisdiction over an appeal of the denial of a WIGI if the agency10 denied an employee an opportunity for reconsideration by failing to give notice of the right to reconsideration or if the agency unreasonably refused to act on a request for reconsideration. Jack v. Department of Commerce , 98 M.S.P.R. 354, ¶¶ 9-10 (2005). The administrative judge found that the Board lacks jurisdiction over the appellant’s WIGI denial as an otherwise appealable action. ID at 3 n.1. He noted that the appellant did not request or receive a reconsideration decision of her WIGI denial from the VSHO Director.5 Id. He also noted that the record contained evidence that the appellant may have challenged the WIGI denial through EEO channels and in a grievance but not through the agency’s reconsideration process. Id.; IAF, Tab 9 at 7-11, Tab 10 at 4. As discussed below, we find that the appellant failed to nonfrivolously allege that she requested reconsideration of her WIGI denial through the agency’s reconsideration process. Here, the agency provided the appellant with prompt written notice of her WIGI denial by letter dated June 15, 2020, and informed her of her right to request reconsideration of that decision from the VSHO Director within 20 days of receipt of the letter.6 IAF, Tab 7 at 6. The appellant asserts on review that she submitted a request for reconsideration to her second-line supervisor and then appealed the decision to the HROO Deputy Executive Director. PFR File, Tab 1 at 4. Although the appellant does not provide any additional details in support of her claim, the record contains her January 26, 2021 grievance, which is addressed to her second-line supervisor and the HROO Deputy Executive Director, and the latter individual’s February 4, 2021 grievance decision.7 IAF, Tab 9 at 6-8, 11. 5 According to the agency, the appellant was covered by the agency’s administrative grievance procedure. IAF, Tab 9 at 4. There is no indication in the record that she was covered by a collective bargaining agreement. 6 The appellant’s WIGI was due on July 5, 2020. IAF, Tab 7 at 6. 7 In determining whether the appellant has made a nonfrivolous allegation of jurisdiction entitling her to a hearing, the Board may consider the agency’s11 The appellant’s grievance, which challenged her unacceptable performance rating, also mentioned her WIGI denial. Id. at 7-9. The HROO Deputy Executive Director issued a decision that upheld both actions. Id. at 11. To the extent the appellant is alleging that the agency’s decision on the grievance constituted a reconsideration decision on the WIGI denial, such an allegation is unavailing. Generally, a grievance is not an “effective request for reconsideration” of a WIGI denial unless it sets forth the reasons for reconsideration and is directed to and considered by the designated office responsible for adjudicating it. See Priselac v. Department of the Navy , 77 M.S.P.R. 332, 335-36 (1998); Jones v. Department of the Air Force, 29 M.S.P.R. 241, 243 -44 (1985). Here, the appellant stated in her grievance the reasons why she felt her WIGI should have been granted and also expressed that she was requesting reconsideration. IAF, Tab 9 at 8, 11. However, her grievance was not directed to, or considered by, the VSHO Director. IAF, Tab 7 at 6. Further, she filed her grievance over 6 months after a request for reconsideration would have been due, further supporting the conclusion that she was not invoking the reconsideration process. We therefore agree with the administrative judge that the Board lacks jurisdiction over the appellant’s WIGI denial as an otherwise appealable action. ID at 3 n.1. Accordingly, we affirm the initial decision, as modified herein. documentary submissions; however, to the extent this evidence constitutes mere factual contradiction of her otherwise adequate prima facie showing of jurisdiction, the Board may not weigh evidence and resolve conflicting assertions of the parties, and the agency’s evidence may not be dispositive . Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994). The appellant’s conclusory allegation that she sought reconsideration is insufficient to meet the nonfrivolous allegation standard. See 5 C.F.R. § 1201.4(s). Although we are citing the agency’s evidence regarding the appellant’s grievance, we have done so only to determine if it provides sufficient context to her claim that she sought reconsideration of her WIGI denial to allow her to meet her jurisdictional burden. 12 NOTICE OF APPEAL RIGHTS8 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 8 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.13 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 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. 420 (2017). If you have a representative in this case, and 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 any14 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s15 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.9 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.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. 9 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 16 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: _____________________ _________ Gina K. Grippando Clerk of the Board Washington, D.C.17	Young_ChariseAT-1221-21-0282-W-1_Final_Order.pdf	2024-09-30	CHARISE YOUNG v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-21-0282-W-1, September 30, 2024	AT-1221-21-0282-W-1	NP
467	https://www.mspb.gov/decisions/nonprecedential/Slagle_GloriaDC-0843-20-0739-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD GLORIA SLAGLE, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER DC-0843-20-0739-I-1 DATE: September 30, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jeremy A. Kosin , Esquire, Greensboro, North Carolina, for the appellant. Carla Robinson , Washington, D.C., for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman Henry J. Kerner , Member FINAL ORDER The appellant has filed a petition for review2 of the initial decision, which affirmed the final decision by the Office of Personnel Management finding that the appellant was not entitled to a lump-sum benefit under the Federal 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 2 We GRANT the appellant’s motion to accept her petition for review as timely filed under 5 C.F.R. § 1201.114(e). Employees’ Retirement System based on the death of her husband, Wayne Slagle. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.2 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 3 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 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. 420 (2017). If you have a representative in this case, and 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: 4 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, 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 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. 5 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.6	Slagle_GloriaDC-0843-20-0739-I-1_Final_Order.pdf	2024-09-30	GLORIA SLAGLE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0843-20-0739-I-1, September 30, 2024	DC-0843-20-0739-I-1	NP
468	https://www.mspb.gov/decisions/nonprecedential/Lewis_LynettePH-1221-20-0085-W-2_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LYNETTE LEWIS, Appellant, v. SOCIAL SECURITY ADMINISTRATION, Agency.DOCKET NUMBER PH-1221-20-0085-W-2 DATE: September 30, 2024 THIS ORDER IS NONPRECEDENTIAL1 Lynette Lewis , Baltimore, Maryland, pro se. Jennifer Karangelen , Esquire, and Julie Tong , Esquire, Baltimore, Maryland, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member* *Member Kerner recused himself and did not participate in the adjudication of this appeal. REMAND ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed without prejudice her individual right of action (IRA) appeal on 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). grounds of adjudicatory efficiency . For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the initial decision, and REMAND the case for further adjudication in accordance with this Remand Order. We also direct the Board’s Northeastern Regional Office to JOIN this case with the appellant’s separate IRA appeal that is before that office, Lewis v. Social Security Administration , MSPB Docket No. PH-1221-19-0060-B-1, because doing so would expedite their processing and not adversely affect the interests of the parties. See 5 U.S.C. § 7701(f)(2); 5 C.F.R. § 1201.36(b). BACKGROUND ¶2The appellant was a GS-13 Program Analyst in the agency’s Office of Electronic Services and Technology (OEST), Division of Strategic Planning and Customer Engagement. Lewis v. Social Security Administration , MSPB Docket No. PH-1221-19-0060-W-1 (0060 W-1 AF), Remand Order (0060 W-1 Remand Order), ¶ 2 (Aug. 9, 2024). She filed an IRA appeal on November 14, 2018, alleging that the agency took various personnel actions against her in retaliation for protected disclosures. 0060 W-1 AF, Tab 1 at 1, 3, 15-16; 0060 W-1 Remand Order, ¶ 2. The administrative judge dismissed that appeal for lack of jurisdiction in a July 22, 2019 initial decision. 0060 W-1 AF, Tab 33, Initial Decision. On petition for review of that decision, we vacated the administrative judge’s decision and, considering the matters exhausted by the appellant with the Office of Special Counsel (OSC) according to its October 23, 2018 letter, determined that the appellant made nonfrivolous allegations of a protected disclosure and protected activities. Specifically, we found that the appellant made nonfrivolous allegations of a protected disclosure under 5 U.S.C. § 2302(b)(8)(A)(i) when she complained to management about its request to use her .edu email address to obtain free services by masquerading as a student. 0060 W-1 Remand Order, ¶¶ 10-11. We also determined that her alleged disclosure of the same to the agency’s Office of the Inspector General (OIG) constituted nonfrivolous2 allegations of protected activity under 5 U.S.C. § 2302(b)(9)(C), and the appellant’s alleged refusal to provide her .edu email address to management constituted nonfrivolous allegations of protected activity under 5 U.S.C. § 2302(b)(9)(D). Id., ¶ 11. We further found that the appellant made nonfrivolous allegations that the agency failed to take a personnel action when it denied her request for reassignment, and that her disclosures and activities were a contributing factor therein. Id., ¶ 12. Thus, we found jurisdiction over the IRA appeal and remanded the appeal to the regional office for further adjudication. Id., ¶ 15.2 The appeal is now pending with the Northeastern Regional Office. Lewis v. Social Security Administration , MSPB Docket No. PH-1221-19-0060-B- 1. ¶3The agency removed the appellant from her position, effective October 11, 2019.3 Lewis v. Social Security Administration , MSPB Docket No. PH-1221-20- 0085-W-1, Appeal File (0085 W-1 AF), Tab 5 at 24-46. The appellant filed another IRA appeal on December 2, 2019, following a determination letter from OSC dated November 25, 2019 . 0085 W-1 AF, Tab 1 at 3, 6. The administrative judge dismissed the IRA appeal without prejudice, 0085 W-1 AF, Tab 10, Initial Decision, and the instant appeal is the appellant’s refiling of that appeal, Lewis v. Social Security Administration , MSPB Docket No. PH-1221-20-0085-W-2, Appeal File (0085 W-2 AF), Tab 2. On November 5, 2020, the administrative judge issued an initial decision dismissing the IRA appeal without prejudice for a second time. 0085 W-2 AF, Tab 13, Initial Decision (0085 W-2 ID). She found 2 The appellant did not request a hearing in that case. However, we determined that the parties were entitled to a reasonable opportunity to file additional evidence and argument on the merits on remand. 3 The appellant also appealed her removal to the Board under chapter 75, and an administrative judge dismissed her removal appeal with prejudice as a sanction for her repeated failures to obey discovery-related orders. Lewis v. Social Security Administration, MSPB Docket No. PH-0752-20-0030-I-1, Initial Appeal File, Tab 13, Initial Decision. We affirmed that decision on August 28, 2024. Lewis v. Social Security Administration , MSPB Docket No. PH-0752-20-0030-I-1, Final Order (Aug. 28, 2024).3 that the appellant alleged the following two protected disclosures: (1) her reports to management and OIG concerning management’s unlawful request to use her .edu email address; and (2) reports to her department that her computer was being accessed illegally. 0085 W-2 ID at 2-3. She found that, at that juncture, the appellant had provided little detail regarding the latter disclosure and, as such, had not made nonfrivolous allegations of a protected disclosure. 0085 W-2 ID at 3. As the former disclosure was identical to one of the disclosures raised in her earlier IRA appeal, the administrative judge determined that a dismissal of the appeal without prejudice was appropriate in the interests of judicial economy, administrative efficiency, and fairness. 0085 W-2 ID at 3-5. ¶4The appellant has filed a petition for review of that decision. Lewis v. Social Security Administration , MSPB Docket No. PH-1221-20-0085-W-2, Petition for Review File (0085 W-2 PFR File), Tab 1. The agency has responded in opposition to the appellant’s petition for review, 0085 W-2 PFR File, Tab 5, and the appellant has replied to the agency’s response, 0085 W-2 PFR File, Tab 6. ANALYSIS ¶5With her petition for review, the appellant has submitted documentary evidence for the first time regarding her allegedly protected disclosure that her computer was being accessed illegally. 0085 W-2 PFR File, Tab 3 at 5, 49-52. The newly submitted evidence shows that, on September 27, 2018, the appellant submitted a service ticket to the Helpdesk reporting that the “OEST Systems LAN Support team” accessed her desktop without her permission and used her mouse to point to things and click on things. Id. at 51-52. She stated in the service ticket that this occurred while she was on her break and while she was updating resumes, and that the unauthorized access was a “violation of her rights.” Id. at 52. The email chain that followed suggests that, at some point, the appellant accused management of being involved in illegally accessing her computer and4 copied the email address for SSA’s OIG hotline. Id. at 50.4 Furthermore, the appellant highlights in her petition for review that she disclosed the fact that her computer was being accessed illegally to OIG. Id. at 5. ¶6Although the Board ordinarily will not consider evidence or argument submitted for the first time on review unless the party shows that it was unavailable when the record closed below, see 5 C.F.R. § 1201.115(d), we exercise our discretion to do so under the circumstances of this case, see 5 C.F.R. § 1201.115 (providing that, notwithstanding the regulatory requirements for a petition for review, “the Board reserves the authority to consider any issue in an appeal before it.”). The Board has jurisdiction over an IRA appeal if the appellant has exhausted her administrative remedies before OSC and makes nonfrivolous allegations that (1) she made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the disclosure or protected activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a). Edwards v. Department of Labor, 2022 MSPB 9, ¶ 8, aff’d, No. 22-1967 (Fed. Cir. Jul. 7, 2023); Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016). ¶7We find that the newly submitted evidence constitutes nonfrivolous allegations of protected activity under 5 U.S.C. § 2302(b)(9)(C). Under 5 U.S.C. § 2302(b)(9)(C), an employee engages in protected activity when she discloses information to the agency’s OIG or to OSC “in accordance with applicable provisions of law.” See Fisher v. Department of the Interior , 2023 MSPB 11, ¶ 8. Under the broadly worded provision of 5 U.S.C. § 2302(b)(9)(C), any disclosure of information to OIG or OSC is protected regardless of its content as long as such disclosure is made in accordance with applicable provisions of law. Id. Therefore, we find that the appellant has made nonfrivolous allegations that she 4 The appellant submits an email response to her with a subject line that included “RE: Management Is Illegally Accessing My Computer-Follow Up,” and with the email address “OIG.Hotline@ssa.gov” carbon copied.5 engaged in protected activity under section 2302(b)(9)(C) around September 2018, when she copied the agency’s OIG hotline on her reports that management was illegally accessing her computer. 0085 W-2 PFR File, Tab 3 at 5, 50-52.5 ¶8Furthermore, we find that the evidence is sufficient to show that the appellant exhausted this disclosure to OIG with OSC. The substantive requirements of exhaustion are met when an appellant provides OSC with a sufficient basis to pursue an investigation. Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶ 10. An appellant may demonstrate exhaustion through her initial OSC complaint or correspondence with OSC or, in the alternative, other sufficiently reliable evidence, such as an affidavit or declaration attesting that she raised the alleged disclosure or activity with OSC. Id., ¶ 11. Although the Board’s jurisdiction is limited to those issues that were previously raised with OSC, an appellant may give a more detailed account of her whistleblowing activities before the Board than she did to OSC. Id., ¶ 10. Here, it appears that the appellant provided OSC with the copy of the email chain that she has submitted to the Board on review reflecting her disclosure to OIG. 0085 W-1 AF, Tab 6 at 27. In any event, because OSC’s determination letter references her 5 Considering all argument and evidence submitted by the appellant regarding her reports, we do not find nonfrivolous allegations of a protected disclosure under 5 U.S.C. § 2302(b)(8)(A). A nonfrivolous allegation of a protected whistleblowing disclosure is an allegation of facts that, if proven, would show that the appellant disclosed a matter that a reasonable person in her position would believe evidenced one of the categories of wrongdoing specified under section 2302(b)(8)(A). Gabel v. Department of Veterans Affairs, 2023 MSPB 4, ¶ 6. The proper test for determining whether an employee had a reasonable belief that her disclosures were protected is whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the actions evidenced a violation of a law, rule, or regulation, or one of the other conditions set forth in 5 U.S.C. § 2302(b)(8). Schoenig v. Department of Justice , 120 M.S.P.R. 318, ¶ 6 (2013). We find that a reasonable person in the appellant’s position would not have assumed that one apparently brief incident of unusual behavior of her computer cursor evidenced a successful attempt by management to access her computer in violation of her rights. 0085 W-2 PFR File, Tab 3 at 5, 49-52. Moreover, the appellant has not identified any law, rule, or regulation that may have been violated. Id. at 52.6 disclosure to management that someone was accessing her computer illegally, and the OIG disclosure concerned the same matter and occurred around the same time, we find that the evidence is sufficient to find exhaustion. Id. at 7. ¶9Finally, we find that the appellant has made nonfrivolous allegations that her disclosures or activities were 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). In the instant IRA appeal, the appellant alleges that the agency took the following personnel actions in retaliation for her September 2018 disclosures: (1) a low performance appraisal on October 30, 2018; (2) her placement on administrative leave following the notice of proposed removal in May 2019; and (3) her removal in October 2019. 0085 W-1 AF, Tab 1 at 3, 6, Tab 5 at 24-46, 82-83. The appellant also appears to allege that her disclosures in August 2018 concerning management’s request to use her .edu email address were a contributing factor in these personnel actions, 0085 W-1 AF, Tab 1 at 3, 6, and, as mentioned above, we have found that the appellant has made nonfrivolous allegations that her August 2018 disclosures and activity were protected, 0060 W-1 Remand Order, ¶¶ 10-12. ¶10Concerning removal, we affirm the administrative judge’s findings in the initial decision that this alleged personnel action is excluded. 0085 W-2 ID at 2 n.1. Under the doctrine of res judicata, a valid, final judgment on the merits of an action bars a second action involving the same parties or their privies based on the same cause of action. Ryan v. Department of the Air Force , 113 M.S.P.R. 27, ¶ 11 (2009). At the time of the initial decision, the appellant had appealed her removal under chapter 75, and an administrative judge had dismissed the appeal with prejudice as a sanction for her repeated failures to obey the administrative judge’s discovery-related orders. Lewis v. Social Security Administration , MSPB Docket No. PH-0752-20-0030-I-1, Initial Appeal File, Tab 13, Initial Decision. The Board has since issued a Final Order dismissing the appellant’s petition for review and affirming the initial decision. Lewis v. Social Security7 Administration, MSPB Docket No. PH-0752-20-0030-I-1, Final Order (Aug. 28, 2024). A dismissal with prejudice is a judgment on the merits for purposes of res judicata. See Brown v. Department of the Navy , 102 M.S.P.R. 377, ¶ 10 (2006). Thus, we find that the appellant is barred from relitigating the issue of her removal in an IRA appeal. See, e.g., Ryan, 113 M.S.P.R. 27, ¶ 13; Zgonc v. Department of Defense , 103 M.S.P.R. 666, ¶ 8 (2006), aff’d, 230 F. App’x 967 (Fed. Cir. 2007); Sabersky v. Department of Justice , 91 M.S.P.R. 210, ¶¶ 7-8 (2002), aff’d, 61 F. App’x 676 (Fed. Cir. 2003). ¶11However, the appellant has also alleged a retaliatory performance evaluation and placement on administrative leave. 0085 W-1 AF, Tab 1 at 3, 6. A performance evaluation is a personnel action under 5 U.S.C. § 2302(a)(2)(A) (viii), regardless of whether it reflects a satisfactory rating. Rumsey v. Department of Justice , 120 M.S.P.R. 259, ¶ 16 (2013). The Board has also held that placement on administrative leave constitutes a personnel action. Hagen v. Department of Transportation , 103 M.S.P.R. 595, ¶ 13 (2006). Thus, we will consider whether the appellant has raised nonfrivolous allegations of contributing factor with respect to these alleged personnel actions. One way to establish the contributing factor criterion at the jurisdictional stage of an IRA appeal is the knowledge/timing test, under which an employee may nonfrivolously 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 disclosure and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action. Salerno, 123 M.S.P.R. 230, ¶ 13. The Board has held that personnel actions occurring within 1 to 2 years after the protected disclosures are sufficient to meet the timing portion of the test. Wilson v. Department of Veterans Affairs , 2022 MSPB 7, ¶ 41. ¶12The appellant has alleged that she disclosed the request to fraudulently use her .edu email address to “all of [her] management team, commissioners8 included” in August 2018, 0085 W-1 AF, Tab 6 at 13-14, and the illegal computer access to “her department” in September 2018, id. at 27. As she has alleged that her entire management team was responsible for her yearly performance appraisal in October 2018, id. at 26, we find that she has made nonfrivolous allegations that her disclosures or activities were a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a).6 As the decision to place the appellant on administrative leave in May 2019 was signed by her Deputy Division Director, we also find that she has made nonfrivolous allegations of contributing factor with respect to her placement on administrative leave.7 0085 W-1 AF, Tab 5 at 82-83, Tab 6 at 26. Thus, the appellant has established the Board’s jurisdiction over the instant IRA appeal. See Edwards, 2022 MSPB 9, ¶ 8. ¶13Based on the above, we find that dismissal without prejudice is no longer appropriate. Appeals may be dismissed in the interest of adjudicatory efficiency when an identity of issues exists and the controlling issues in the appeal will be determined in a prior appeal. Kinler v. General Services Administration , 44 M.S.P.R. 262, 263 (1990); see Bean v. U.S. Postal Service , 120 M.S.P.R. 447, ¶¶ 5-6 (2013). Because the appellant has nonfrivolously alleged that she engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C) around September 2018 that was a contributing factor in the agency’s decision to take a personnel action, and this protected activity is not at issue in her other IRA appeal, an identity of issues 6 Furthermore, the documentary evidence shows that the individual who the appellant alleges was formally assigned as her supervisor—and presumably issued her performance appraisal—was copied on the appellant’s September 2018 disclosures to OIG concerning the illegal computer access. 0085 W-1 AF, Tab 6 at 26; 0085 W-2 PFR File, Tab 3 at 50. 7 Even though it is unclear from the appellant’s pleadings whether the Deputy Division Director was part of her “department”—or privy to her September 2018 disclosures to OIG—we note that lack of knowledge by a single official is not dispositive. Cf. Cahill v. Merit Systems Protection Board , 821 F.3d 1370, 1374-75 (Fed. Cir. 2016 ); Bradley v. Department of Homeland Security , 123 M.S.P.R. 547, ¶¶ 15-17 (2016 ) (citing Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 12 (2012 )). 9 no longer exists. Furthermore, since the issuance of the initial decision in this IRA appeal, the Board has determined that the appellant nonfrivolously alleged protected disclosures and activity concerning management’s request to use her .edu email address in August 2018. 0060 W-1 Remand Order, ¶¶ 10-12. The appellant has nonfrivolously alleged retaliatory personnel actions in the instant IRA appeal that she did not allege in her earlier IRA appeal, and these too are controlling issues in her current appeal that will not be determined in her other appeal should the Board find on the merits that her August 2018 disclosures or activity are protected. ¶14Although we find that dismissal without prejudice is not appropriate, we recognize that the Board should not take a piecemeal approach by adjudicating separate, but related, issues in separate appeals. See McCarthy v. International Boundary and Water Commission , 116 M.S.P.R. 594, ¶ 11 (2011). The Board is authorized to join two or more appeals filed by the same appellant and hear and decide them concurrently if the Board determines that joinder “could result in the appeals being processed more expeditiously and would not adversely affect any party.” 5 U.S.C. § 7701(f)(2); Groseclose v. Department of the Navy , 111 M.S.P.R. 194, ¶ 14 (2009); 5 C.F.R. § 1201.36(b). Given the similarity of the issues presented and the likely overlap of evidence and witnesses, joinder of the appellant’s two pending IRA appeals for adjudication is appropriate. Cf. McCarthy, 116 M.S.P.R. 594, ¶ 11; Groseclose, 111 M.S.P.R. 194, ¶ 14. 10 ORDER ¶15For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order. The regional office will join this appeal with the appellant’s separate IRA appeal that is before that office on remand, Lewis v. Social Security Administration , MSPB Docket No. PH-1221-19-0060-B-1. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.11	Lewis_LynettePH-1221-20-0085-W-2_Remand_Order.pdf	2024-09-30	LYNETTE LEWIS v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. PH-1221-20-0085-W-2, September 30, 2024	PH-1221-20-0085-W-2	NP
469	https://www.mspb.gov/decisions/nonprecedential/Pullano_Dawn_M_CH-3443-21-0270-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DAWN M. PULLANO, Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER CH-3443-21-0270-I-1 DATE: September 30, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Dawn M. Pullano , Oak Forest, Illinois, pro se. Rebecca L. Stephenson , Esquire, Chicago, Illinois, for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman Henry J. Kerner , Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed her restoration appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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). the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. We VACATE the administrative judge’s findings that the appellant failed to nonfrivolously allege that she recovered sufficiently to return to regular duty and that the agency improperly denied her request for restoration based on lack of available work within her restrictions, MODIFY the initial decision to supplement the administrative judge’s jurisdictional analysis, and otherwise AFFIRM the initial decision, still finding that the Board lacks jurisdiction over the appeal. BACKGROUND The appellant was employed as a City Carrier at the Mount Greenwood Post Office in Chicago, Illinois. Initial Appeal File (IAF), Tab 1 at 17. In January 2009, the appellant sustained an on-the-job injury that impacted the use of her hands. IAF, Tab 12 at 4-5. In April 2009, the Office of Workers’ Compensation Programs (OWCP) accepted her claim for occupational disease based on her January 2009 injury. Id. The appellant held modified limited-duty assignments as a Lobby Greeter in February 2018, and a Customer Care Representative in December 2018. Id. at 127-29. According to the appellant, the agency withdrew its offer of a modified limited-duty assignment in July 2020 due to lack of available work based on her existing medical restrictions, and she was not offered a compatible position thereafter. IAF, Tab 1 at 8-9, Tab 12 at 2-3.2 She indicated that the agency did not conduct a proper search of positions that could comply with her medical restrictions. IAF, Tab 12 at 2-3. The appellant filed the instant appeal with the Board, alleging that the agency failed to restore her to duty in a position consistent with her medical restrictions related to her on-the-job injury. IAF, Tab 1 at 8-9. In its initial response to the appeal, the agency noted that the appellant’s OWCP file from the Department of Labor was “highly relevant” to the case, but that the appellant had not responded to its request to authorize the release of her file. IAF, Tab 5 at 6. During a telephonic status conference, the appellant refused to authorize the release of her OWCP file on the grounds that the entirety of her medical records is not relevant. IAF, Tab 10 at 1. The administrative judge then issued an order that apprised the appellant of the elements and burden of proving jurisdiction over a restoration appeal, and ordered her to file evidence and argument on the jurisdictional issue. IAF, Tab 11. The appellant responded that she sustained an on-the-job injury and provided medical documentation but the agency took away her modified assignment in July 2020. IAF, Tab 12 at 1-3. The appellant submitted documents pertaining to her 2009 OWCP claim and subsequent disciplinary actions taken against her by the agency, which resulted in her filing several grievances. Id. at 4-129. The agency stated that, because the appellant refused to provide updated medical information and authorize the release of her OWCP file, the agency was unable to respond to the restoration claim. IAF, Tabs 15, 17. The appellant responded that the entirety of her medical records is not relevant and again refused to authorize the release of her OWCP file. IAF, Tabs 16, 18. Without holding the requested hearing, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 20, Initial Decision (ID) at 1, 7. Specifically, he found that the appellant failed to nonfrivolously allege that she has recovered sufficiently to return to regular duty; that the agency improperly denied her request for restoration based on lack of3 available work within her restrictions; and that the denial was arbitrary and capricious. ID at 5-6. He noted that, in the absence of jurisdiction, the Board could not address the appellant’s discrimination claim. ID at 6-7. The appellant has filed a petition for review of the initial decision. Petition for Review (PFR) File, Tab 1. She argues that the agency should not have taken her job away in July 2020, and that the agency did not provide work for her that was within her medical restrictions. Id. at 4. She also argues that she should not be expected to provide the agency with her medical records and that the agency harassed her because of her on-the-job injury. Id. The agency has filed a response, PFR File, Tab 3, to which the appellant has replied,2 PFR File, Tab 4. DISCUSSION OF ARGUMENTS ON REVIEW The Federal Employees’ Compensation Act (FECA) and the implementing regulations of the Office of Personnel Management (OPM) at 5 C.F.R. part 353 provide, among other things, that Federal employees who suffer compensable injuries enjoy certain rights to be restored to their previous or comparable positions. Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 9 (2016); see 5 U.S.C. § 8151(b). Under OPM’s regulations, such employees have different substantive rights based on whether they have fully recovered, partially recovered, or are physically disqualified from their former or equivalent positions. Kingsley, 123 M.S.P.R. 365, ¶ 9 ; 5 C.F.R. § 353.301. Partially recovered employees are those who, “though not ready to resume the full range” of duties, have “recovered sufficiently to return to part-time or light duty or to another position with less demanding physical requirements.” Kingsley, 123 M.S.P.R. 365, ¶ 9; 5 C.F.R. § 353.102. OPM’s regulations require that agencies “make every effort to restore in the local commuting area, according to 2 The appellant provided a copy of a December 23, 2020 decision on her Step B grievance. PFR File, Tab 4 at 9-11. That document is already in the record, IAF, Tab 1 at 19-21, and thus, it is not new evidence, see Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980). 4 the circumstances in each case, an individual who has partially recovered from a compensable injury and who is able to return to limited duty.” Kingsley, 123 M.S.P.R. 365, ¶ 10; 5 C.F.R. § 353.301(d). The Board has jurisdiction to review whether an agency’s denial of restoration to a partially recovered employee was arbitrary and capricious. Kingsley, 123 M.S.P.R. 365, ¶ 10; 5 C.F.R. § 353.304(c). To establish jurisdiction over a claim of a denial of restoration as a partially recovered employee, an appellant is required to make the following nonfrivolous allegations: (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 than those previously required of her; (3) the agency denied her request for restoration; and (4) the denial was arbitrary and capricious because of the agency’s failure to perform its obligations under 5 C.F.R. § 353.301(d). Hamilton v. U.S. Postal Service, 123 M.S.P.R. 404, ¶ 12 (2016) ; 5 C.F.R. § 1201.57(a)(4), (b). Once an appellant establishes jurisdiction, she is entitled to a hearing at which she must prove the merits of her restoration appeal, i.e., all four of the above elements, by a preponderance of the evidence. Kingsley, 123 M.S.P.R. 365, ¶¶ 11-12; 5 C.F.R. § 1201.57(c)(4). Here, it is undisputed that the appellant had an approved OWCP claim and that she was absent from work due to an injury that impacted the use of her hands. We find that the appellant nonfrivolously alleged the first element of her partial restoration claim—that she was absent from her position due to a compensable injury. The administrative judge found, however, that the appellant failed to nonfrivolously allege that she recovered sufficiently to return to regular duty; that the agency improperly denied her request for restoration based on lack of available work within her restrictions; and that the denial was arbitrary and capricious. ID at 6; IAF, Tab 12. For the following reasons, we vacate the administrative judge’s findings that the appellant failed to nonfrivolously allege5 that she recovered sufficiently to return to regular duty and that the agency improperly denied her request for restoration based on lack of available work within her restrictions, which rephrased the jurisdictional elements, and we find instead that the appellant nonfrivolously alleged the second and third elements of her partial restoration claim—that she recovered sufficiently to return to work in a position with less demanding physical requirements than those previously required of her, and that the agency denied her request for restoration. We affirm the finding that the appellant failed to nonfrivolously allege the fourth element of her partial restoration claim—that the denial was arbitrary and capricious. The record reflects that, after OWCP approved her claim for a compensable injury, the agency offered the appellant modified limited-duty assignments, including Lobby Greeter in February 2018 and Customer Care Representative in December 2018, both of which the appellant accepted. IAF, Tab 12 at 127-29. However, the appellant indicates that the agency did not provide her with work within her medical restrictions from July 2020 onward, even though she expressed to the agency that she wished to return to work. PFR File, Tab 1 at 4; IAF, Tab 1 at 8-9, Tab 12 at 2-3. In her jurisdictional response, the appellant included a copy of a December 23, 2020 decision on her Step B grievance, finding that the agency violated a section of the Employee and Labor Relations Manual when it withdrew an offer of a modified limited-duty assignment. IAF, Tab 12 at 72-75. The Board has found that an agency’s rescission of a previously provided restoration or the discontinuation of a limited-duty position may constitute an appealable denial of restoration. Scott v. U.S. Postal Service, 118 M.S.P.R. 375, ¶ 9 (2012). Therefore, we find that the appellant has made a nonfrivolous allegation that the agency denied her request for restoration when it discontinued her former limited-duty assignment in July 2020. However, regarding the fourth jurisdictional element, the mere fact that the agency discontinued the appellant’s former limited-duty assignment does not6 necessarily mean that it was acting arbitrarily and capriciously. See Paszko v. U.S. Postal Service, 119 M.S.P.R. 207, ¶ 10 (2013). A fter the initial decision in this appeal was issued, the Board issued a decision in Cronin v. U.S. Postal Service, 2022 MSPB 13, which clarified when a denial of restoration may be arbitrary and capricious.3 The Board in Cronin held that, although agencies may undertake restoration efforts beyond the minimum effort required by OPM under 5 C.F.R. § 353.301(d), an agency’s failure to comply with self-imposed obligations cannot itself constitute a violation of 5 C.F.R. § 353.301(d) such that a resulting denial of restoration would be rendered arbitrary and capricious for purposes of establishing Board jurisdiction under 5 C.F.R. § 353.304(c). Cronin, 2022 MSPB 13, ¶ 20. Rather, 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 to consider her for any such vacancies. See Cronin, 2022 MSPB 13, ¶ 20 (citing Sanchez v. U.S. Postal Service, 114 M.S.P.R. 345, ¶ 12 (2010)). Additionally, the Board in Cronin clarified that claims of prohibited discrimination or reprisal cannot serve as an “alternative means” of showing that a denial of restoration was arbitrary and capricious. Cronin, 2022 MSPB 13, ¶ 21. The Board acknowledged that an agency’s failure to comply with section 353.301(d) may well be the result of prohibited discrimination or reprisal for protected activity; however, whether that is so is immaterial to the question of whether a denial of restoration is arbitrary and capricious for purposes of section 353.304(c). Id. 3 Because the Board issued Cronin while this appeal was pending, it is given retroactive effect and applies to this appeal. See Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 752 (1995) (finding that, when a court decides a case and applies a new legal rule to the parties before it, it must apply the same new legal rule to all pending cases, whether or not those cases involve events that occurred prior to the announcement of the new rule).7 On review, the appellant appears to be alleging that her denial of restoration was arbitrary and capricious, and that the agency discriminated against her based on disability. She claims that the agency representative should have been able to obtain her medical information from the OWCP and that it was the agency’s responsibility to locate a position that was within her medical restrictions, which the agency failed to do. PFR File, Tab 1 at 4, Tab 4 at 5-6. The agency explained, however, that, pursuant to an August 18, 2014 Memorandum of Understanding between the agency and the Department of Labor, the agency may only obtain OWCP records for a restoration case if the appellant executes a FECA release, which the appellant refused to do. IAF, Tab 5 at 5-6. The agency may discontinue a modified assignment if the duties of that assignment actually went away or if the agency needed to reassign them to non-limited duty employees who would otherwise not have enough work to do. Paszko, 119 M.S.P.R. 207, ¶ 10. According to the March 2, 2021 final agency decision in the appellant’s equal employment opportunity (EEO) complaint, the appellant was provided with modified limited-duty assignments as a Customer Care Representative and Lobby Greeter, but the outbreak of COVID-19 eliminated the need for such positions throughout the agency. IAF, Tab 2 at 16-18. The agency was under no obligation to make work for the appellant or to pay the appellant when there was not enough meaningful work for her to do. See Fitzsimmons v. U.S. Postal Service, 99 M.S.P.R. 1, ¶ 11 (2005) (noting that the appellant’s contention that she was informed no work was available upon making request for restoration was not a nonfrivolous allegation that denial of restoration was arbitrary and capricious). Furthermore, as the administrative judge noted, the appellant was unwilling to allow the agency to obtain her OWCP file in order to allow the agency to evaluate her current medical restrictions and any potential compatible job vacancies. ID at 6. Therefore, even though the agency was required to search throughout the entire local commuting area for alternative assignments, and the appellant suggests that it did not, its failure to do8 so does not necessarily render the denial of restoration arbitrary and capricious if it has a sufficient explanation. See Paszko, 119 M.S.P.R. 207, ¶ 10. We therefore find that the appellant has failed to nonfrivolously allege that the agency’s discontinuation of her assignment was arbitrary and capricious. In the absence of an otherwise appealable action, we lack jurisdiction to address the appellant’s claim of disability discrimination. IAF, Tab 1 at 9, Tab 12 at 2-3; see McDonnell v. Department of the Navy, 84 M.S.P.R. 380, ¶ 11 (1999) (finding that, in the absence of an otherwise appealable action, the Board lacked jurisdiction to review the appellant’s claim of disability discrimination or reprisal for EEO activity). Finally, the appellant’s claim that the administrative judge was biased in favor of the agency and that he ruled against her due to her failure to sign the FECA release is unavailing.4 PFR File, Tab 4 at 5-6. The fact that an administrative judge ruled against the appellant is insufficient evidence to show bias. Coufal v. Department of Justice, 98 M.S.P.R. 31, ¶ 11 (2004). Thus, we affirm the dismissal of this appeal for lack of jurisdiction. NOTICE OF APPEAL RIGHTS5 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of 4 The Board has long held 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. 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 his comments or actions evidence “a deep-seated favoritism or antagonism that would make fair judgment impossible.” Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002). The appellant has not identified any conduct by the administrative judge that would reflect antagonism or favoritism, nor has she raised any allegations that would support a finding of bias. Thus, we find that the appellant has not overcome the presumption of honesty and integrity that accompanies an administrative judge. 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.9 your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular10 relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case, and 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 . 11 Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 of12 competent jurisdiction.6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.14	Pullano_Dawn_M_CH-3443-21-0270-I-1_Final_Order.pdf	2024-09-30	DAWN M. PULLANO v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-3443-21-0270-I-1, September 30, 2024	CH-3443-21-0270-I-1	NP
470	https://www.mspb.gov/decisions/nonprecedential/Paty_Russell_C_DA-844E-20-0379-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD RUSSELL C. PATY, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER DA-844E-20-0379-I-1 DATE: September 27, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Russell C. Paty , Canyon Lake, Texas, pro se. Linnette Scott , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which affirmed the reconsideration decision of the Office of Personnel Management (OPM) that denied his application for retirement under Federal Employees’ Retirement System (FERS). Generally, we grant petitions such as this one only in 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. On petition for review, the appellant largely disagrees with the administrative judge’s factual findings, arguing that she discounted the medical evidence supporting his claim that he is medically unable to perform the duties of his position. Petition for Review (PFR) File, Tab 1 at 4-9; Tab 4 at 4-5. He also argues that the administrative judge ignored evidence demonstrating that there was a deficiency in his attendance. PFR File, Tab 1 at 6. Additionally, the appellant challenges the administrative judge’s decision denying his request for 12 witnesses to testify at the hearing. Id. at 5-6; see Initial Appeal File (IAF), Tab 45 at 3. In the initial decision, the administrative judge thoroughly reviewed and properly considered both the objective medical evidence from the period contemporaneous to the appellant’s Federal service through the period following his resignation and the appellant’s subjective accounts of his conditions in finding that he failed to establish that he became disabled while employed in a position subject to FERS. Initial Appeal File, Tab 51, Initial Decision (ID) at 3-13; see Henderson v. Office of Personnel Management , 117 M.S.P.R. 313, ¶¶ 19-20 (2012) (stating that the Board will consider all relevant objective and subjective evidence in determining an appellant’s entitlement to disability retirement).2 Having reviewed the record evidence and considered his arguments on review, we agree that the appellant failed to establish his entitlement to disability retirement benefits.2 PFR File, Tab 3 at 7-14; ID at 4-8; see Henderson v. Office of Personnel Management , 109 M.S.P.R. 529, ¶ 8 (2008) (setting forth the criteria that an applicant must meet in order to qualify for disability retirement benefits); 5 C.F.R. § 844.103(a)(2). Regarding the appellant’s objection to the administrative judge’s denial of his proposed witnesses, administrative judges have broad discretion to control proceedings, including excluding witnesses where a party has not been shown that the proposed testimony would be relevant, material, and nonrepetitious. Vaughn v. Department of the Treasury , 119 M.S.P.R. 605, ¶ 12 (2013); see 5 C.F.R. § 1201.41(b). To obtain reversal of an initial decision on the ground that the administrative judge abused her discretion in excluding evidence, the petitioning party must show on review that relevant evidence, which could have affected the outcome, was disallowed. Jezouit v. Office of Personnel Management , 97 M.S.P.R. 48, ¶ 12 (2004), aff’d, 121 F. App’x 865 (Fed. Cir. 2005). 2 Regarding the appellant’s assertion that the administrative judge failed to acknowledge the agency’s certification of reassignment and accommodation efforts, which states that the appellant’s condition could not be accommodated due to its severity and that reassignment was not possible, this omission does not provide a reason to disturb the initial decision. PFR File, Tab 1 at 7-8; see IAF, Tab 10 at 78-79. Whether accommodation is possible and whether the appellant declined a reasonable offer of reassignment are relevant to elements (4) and (5) of the test for establishing entitlement to a disability retirement. See Henderson, 109 M.S.P.R. 529, ¶ 8 (identifying the factors that an appellant must meet in order to qualify for disability retirement benefits under FERS); 5 C.F.R. § 844.103(a); see 5 U.S.C. § 8451(a). Because a disability retirement applicant must establish that he meets all of the eligibility requirements, and because the appellant failed to meet his burden of proving that any of his conditions were disabling (as required under the second element of the test), the administrative judge determined that she did not reach elements (4) and (5) of the test, with which we agree. ID at 17 (citing Gribble v. Office of Personnel Management, 55 M.S.P.R. 274, 277 (1992)). Accordingly, we find no error in the administrative judge’s failure to specifically address the agency’s reassignment and accommodation certification in the initial decision. 3 In his challenge to the administrative judge’s order rejecting the 12 requested witnesses, the only witnesses the appellant objected to were his former first-line supervisor and the agency Personnel Specialist who signed off on the certification of reassignment and accommodation efforts. IAF, Tab 47 at 4; see IAF, Tab 10 at 78-79. Conversely, a Physician’s Assistant is the only witness whose potential testimony the appellant addressed in his petition for review, and the appellant has not explained how her testimony was relevant and could have affected the outcome of his case.3 PFR File, Tab 1 at 5. Consequently, we conclude that the appellant has failed to show that relevant evidence that could have affected the outcome of this case was disallowed, and that the administrative judge abused her discretion in disallowing any of the appellant’s witnesses.4 Vaughn, 119 M.S.P.R. 605, ¶ 12; Jezouit, 97 M.S.P.R. 48, ¶ 12. 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 RIGHTS5 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such 3 This is particularly true given that the appellant declined the opportunity to call the two other physician witnesses the administrative judge had approved to testify at the hearing. IAF, Tab 50, Hearing Compact Disc (HCD); see ID at 17 n.3. 4 The appellant also challenges the administrative judge’s finding that he withdrew his request to call two doctors at the hearing, calling the assertion false and misleading. PFR File, Tab 1 at 5; see ID at 17 n.3. We have reviewed the hearing recording and find no error in the administrative judge’s characterization of the hearing record as described in the initial decision. While on the record during the hearing, the administrative judge noted that before going on the record the appellant indicated that “he has decided not to call his physicians,” and she asked the appellant “is that correct []?” HCD. In response, the appellant answered “yes your honor, we have sufficient documentation to indicate what they’d say here,” and subsequently began his direct testimony since he was the only other approved witness. HCD. 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.4 review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “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 discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and 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 the6 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 petition for 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of7 review within 60 days of the date of issuance of this decision. 5 U.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. MSPB decisions 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.9	Paty_Russell_C_DA-844E-20-0379-I-1_Final_Order.pdf	2024-09-27	RUSSELL C. PATY v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-844E-20-0379-I-1, September 27, 2024	DA-844E-20-0379-I-1	NP
471	https://www.mspb.gov/decisions/nonprecedential/Gravely_Ricky_T_CH-1221-21-0258-W-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD RICKY T. GRAVELY, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER CH-1221-21-0258-W-1 DATE: September 27, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jennifer D. Isaacs , Esquire, Atlanta, Georgia, for the appellant. Amanda Scholz , Esquire, Shaw Air Force Base, South Carolina, for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member* *Member Kerner recused himself and did not participate in the adjudication of this appeal. FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his individual right of action (IRA) appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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). circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). In his petition for review, the appellant asserts that the administrative judge erred in finding that he failed to nonfrivolously allege that his complaint regarding overtime was a protected disclosure. Petition for Review (PFR) File, Tab 1 at 6-7. We agree with the administrative judge that, to the extent the appellant asserts that he disclosed that the agency discriminated against him in its application of overtime policies, this is not a protected whistleblower disclosure under 5 U.S.C. § 2302(b)(8). See Edwards v. Department of Labor , 2022 MSPB 9, ¶¶ 21-23 (explaining that Title VII claims are generally excluded from protection under whistleblower protection statutes unless an appellant alleges that he was seeking to remedy an alleged violation of section 2302(b)(8)); Bishop v. Department of Agriculture , 2022 MSPB 28, ¶¶ 15-16 (same); Redschlag v. Department of the Army , 89 M.S.P.R. 589, ¶ 84 (2001) (stating that purported disclosures that involve alleged discrimination or reprisal claims arising under Title VII are not covered by section 2302(b)(8)), review dismissed , 32 F. App’x 543 (Fed. Cir. 2002). We have further considered whether, apart from the discriminatory element, the appellant nonfrivolously alleged making a protected2 disclosure in a broader sense that the agency allowed fraudulent or “unnecessary overtime,” or that employees performed “uncompensated work.” Initial Appeal File (IAF), Tab 4 at 15, 18; see, e.g., Berkley v. Department of the Army , 71 M.S.P.R. 341, 351-52 (1996) (finding that the appellant made a protected disclosure when he complained to the inspector general and his supervisors that he was denied overtime pay for overtime hours he had worked). However, the appellant’s allegations to the Office of Special Counsel (OSC) and to the Board present only vague and conclusory allegations of overtime abuse and do not make a specific, detailed allegation of wrongdoing. See Hessami v. Merit Systems Protection Board , 979 F.3d 1362, 1371 n.6 (Fed. Cir. 2020) (finding that an appellant’s allegations did not meet the nonfrivolous standard when she made no specific allegation for why she reasonably believed that her disclosures evidenced a violation of law, rule, or regulation). The alleged overtime disclosure is not realleged in the October or December 2019 OSC complaints and is not identified in any submissions before the administrative judge, including the initial appeal and the appellant’s response to the administrative judge’s jurisdictional order. IAF, Tabs 1, 4. Despite numerous opportunities to explain the basis of his allegations, the appellant has not identified specifically what he disclosed regarding alleged overtime abuse, to whom he made the disclosures, or why he had a reasonable belief that the agency was engaging in fraudulent or “unnecessary overtime.” E.g., IAF, Tab 4 at 15, 18. Further, although the appellant states that he made “multiple disclosures regarding abuse of overtime and fraudulent TDY in 2016 and 2017,” it is unclear what he disclosed at that time because he stated that he did not learn of the alleged overtime abuse until February 2019. Id. Under these circumstances, we find that the appellant has failed to nonfrivolously allege that he made a protected disclosure regarding overtime violations. We have considered the appellant’s arguments as to the remaining alleged protected disclosures, but we find them unavailing. PFR File, Tab 1 at 6-7.3 Because we affirm the administrative judge’s finding that the appellant failed to make a nonfrivolous allegation of a protected whistleblower disclosure, we need not consider whether he made a nonfrivolous allegation of contributing factor.2 See El v. Department of Commerce , 123 M.S.P.R. 76, ¶ 13 (2015), aff’d, 663 F. App’x 921 (Fed. Cir. 2016). For these reasons, we affirm the initial decision. NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions 2 The initial decision includes an alternative finding that the appellant failed to provide evidence that any of his alleged protected disclosures were a contributing factor to the alleged personnel actions. IAF, Tab 9, Initial Decision at 16. To the extent the administrative judge required evidence or proof related to the alleged personnel actions, that is not required at the jurisdictional stage of an IRA appeal. Hessami, 979 F.3d at 1368-69; Fisher v. Environmental Protection Agency , 108 M.S.P.R. 296, ¶7 (2008). Nonetheless, any error is immaterial to the outcome because we find that the appellant failed to nonfrivolously allege that he made any protected disclosures. 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 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 obtain5 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and 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 6 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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. 7 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Gravely_Ricky_T_CH-1221-21-0258-W-1_Final_Order.pdf	2024-09-27	RICKY T. GRAVELY v. DEPARTMENT OF THE ARMY, MSPB Docket No. CH-1221-21-0258-W-1, September 27, 2024	CH-1221-21-0258-W-1	NP
472	https://www.mspb.gov/decisions/nonprecedential/Rose_KyleSF-1221-20-0738-W-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD KYLE ROSE, Appellant, v. SMALL BUSINESS ADMINISTRATION, Agency.DOCKET NUMBER SF-1221-20-0738-W-1 DATE: September 23, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Kyle Rose , Modesto, California, pro se. Anna M. Rosenbaum , Denver, Colorado, for the agency. Jeanne Louise Heiser , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member* *Member Kerner recused himself and did not participate in the adjudication of this appeal. FINAL ORDER The appellant has filed a petition for review of the initial decision, which denied his request for corrective action in his individual right of action appeal. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). On petition for review, the appellant argues, among other things, that the administrative judge misapplied the Carr factors as set forth in Carr v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999), and erred in permitting the agency to take his deposition. Petition for Review File, Tab 1 at 9-24. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to supplement the administrative judge’s discussion of the second Carr factor, we AFFIRM the initial decision. Upon review of the record, we agree with the administrative judge’s finding that the agency demonstrated by clear and convincing evidence that it would have reassigned/transferred the appellant, reduced his hours, and terminated him absent his May 20, 2020 protected disclosure. Initial Appeal File (IAF), Tab 30, Initial Decision (ID) at 33-52. In determining whether the agency met its burden, the administrative judge properly considered all relevant factors, including the following: (1) the strength of 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 who were involved in the decisions; and (3) any evidence that the agency takes similar actions against employees who do not engage in such2 protected activity, but who are otherwise similarly situated. ID at 33-34; see Carr, 185 F.3d at 1323. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has articulated a broader and more flexible approach to the second Carr factor, i.e., the agency’s motive to retaliate. See Miller v. Department of Justice , 842 F.3d 1252, 1261-62 (Fed. Cir. 2016) (explaining that the second Carr factor should be evaluated “more generally” because the factor is directed at agency officials involved in making the decision, not just at the employee’s direct supervisor). In Whitmore v. Department of Labor , 680 F.3d 1353 (Fed. Cir. 2012), the Federal Circuit found that those responsible for the agency’s performance overall may be motivated to retaliate even if they were not directly implicated by the disclosures or did not personally know the whistleblower because the criticism could reflect on them in their capacities as managers and employees. Whitmore, 680 F.3d at 1370. The court also reasoned that it is “plainly inconsistent” for an administrative judge to find “no evidence” of retaliatory motive when he previously found that the timing of the agency action followed closely enough to the appellant’s disclosure that one could reasonably conclude that the protected disclosure was a contributing factor in the agency’s action. Id. at 1372. Based on this language, we acknowledge that the administrative judge’s finding that there was “no retaliatory motive,” ID at 48, may have been an overstatement of the record because the agency officials responsible for the appellant’s reassignment/transfer, reduction in hours, and termination all had knowledge of his protected disclosure, were generally implicated by the contents of the disclosure, and were in his chain of command, ID at 9-12, 29; IAF, Tab 8 at 40, 44-45. Additionally, the administrative judge previously correctly found that the appellant’s disclosure was a contributing factor to the personnel actions. ID at 29. Thus, consistent with Miller, Whitmore, and similar cases, a motive to retaliate may have existed. 3 Nevertheless, we find no other evidence of a motive to retaliate absent the basic factors listed above. Importantly, although the appellant had a reasonable belief that the agency was violating a law, rule, or regulation, his belief was incorrect.2 As such, we agree with the administrative judge that the appellant’s disclosure “could not possibly cause embarrassment or harm to the agency or anyone in leadership roles,” and that there was “no danger” to agency officials’ careers or reputations. ID at 45, 48. Thus, any motive to retaliate, if it existed here, was slight and does not outweigh the other factors as discussed by the administrative judge, especially the strength of the agency’s evidence in support of the appellant’s reassignment/transfer, reduction in hours, and termination. ID at 34-44. Therefore, we agree with the administrative judge’s conclusion that the agency proved by clear and convincing evidence that it would have transferred/reassigned the appellant, reduced his hours, and terminated him absent his whistleblower status.3 ID at 51-52. 2 The appellant’s protected disclosure asserted that the agency was violating a law, rule, or regulation by approving loans to religious institutions. IAF, Tab 9 at 54-55. Although the appellant is correct that 13 C.F.R. § 123.301 (2020) generally prohibits religious institutions from receiving an economic injury disaster loan, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) granted increased eligibility for small businesses and organizations to receive loans under either the Economic Injury Disaster Loan program or the Paycheck Protection Program. The CARES Act provided that, during the covered time period, nonprofit organizations, defined as any organization with status under 26 U.S.C. § 501(c)(3) and exempt from taxation under 26 U.S.C. § 501(a), shall be eligible to receive a covered loan if certain qualifying conditions are met. CARES Act, Pub. L. No. 116-136, §§ 1102, 1110, 134 Stat. 281, 286-94 (2020) (codified at 15 U.S.C. §§ 636(a)(36)(A)(vii), (D)(i)), (b); 15 U.S.C. § 9009(b) (2020). Generally, 26 U.S.C. § 501(c)(3) covers religious institutions. Thus, it appears that 13 C.F.R. § 123.301 (2020) and 15 U.S.C. §§ 636, 9009 (2020) conflict. In such situations, the statutes controls. See Johnson v. Department of Justice , 71 M.S.P.R. 59, 67 (1996 ). Accordingly, the appellant’s disclosure alleging that the agency was violating the law by approving loans for religious institutions, while based on a reasonable belief, is, nonetheless, incorrect. See IAF, Tab 9 at 155-59. 3 We have also considered the appellant’s arguments on review that the administrative judge erred in permitting the agency to take his deposition, but those arguments are unconvincing. We agree with the administrative judge’s conclusion that the agency’s notice of deposition was sufficiently compliant with 5 C.F.R. § 1201.73, and we agree that it is axiomatic that an appellant’s deposition seeks discoverable information. IAF,4 NOTICE OF APPEAL RIGHTS4 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the 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). Tab 22 at 2. Further, because the appellant did not request a hearing, we agree with the administrative judge that his deposition testimony was his only sworn testimony in this matter and, therefore, discern no error in the administrative judge’s decision to admit his deposition testimony into evidence. ID at 15 n.9. 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 to you only if you have claimed that you 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. 420 (2017). If you have a representative in this case, and 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 on6 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or7 other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (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. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.9	Rose_KyleSF-1221-20-0738-W-1_Final_Order.pdf	2024-09-23	KYLE ROSE v. SMALL BUSINESS ADMINISTRATION, MSPB Docket No. SF-1221-20-0738-W-1, September 23, 2024	SF-1221-20-0738-W-1	NP
473	https://www.mspb.gov/decisions/nonprecedential/Van_Houten_UlianaDE-0731-23-0107-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ULIANA VAN HOUTEN, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER DE-0731-23-0107-I-1 DATE: September 23, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Uliana Van Houten , Sheridan, Wyoming, pro se. Andrew O’Duden , and Nadia Pluta , Washington, District of Columbia, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which (1) affirmed the Office of Personnel Management’s determination that she was unsuitable for Federal employment, directed her employing agency to terminate her from her Federal position, canceled her reinstatement eligibilities and other 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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). eligibilities, and debarred her from Federal employment in covered positions for a period of 3 years, and (2) found that the appellant did not prove her claim of national origin discrimination. On petition for review, the appellant argues that the no-fault separation letter was incorrectly interpreted as a termination letter, she properly filled out the Optional Form 306, and her national origin was a motivating factor in the action. Petition for Review (PFR) 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 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 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 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.2 appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation3 for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case, and 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 file4 with the EEOC no later than 30 calendar days after your representative 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.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 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. 5 review within 60 days of the date of issuance of this decision. 5 U.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. 6 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: _______________________ _______ Gina K. Grippando Clerk of the Board Washington, D.C.7	Van_Houten_UlianaDE-0731-23-0107-I-1_Final_Order.pdf	2024-09-23	ULIANA VAN HOUTEN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DE-0731-23-0107-I-1, September 23, 2024	DE-0731-23-0107-I-1	NP
474	https://www.mspb.gov/decisions/nonprecedential/Zihlman_Kirk_A_DA-844E-19-0529-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD KIRK A. ZIHLMAN, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER DA-844E-19-0529-I-1 DATE: September 23, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Kirk A. Zihlman , Houston, Texas, pro se. Linnette Scott , Washington, D.C., for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman Henry J. Kerner , Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which affirmed the reconsideration decision of the Office of Personnel Management (OPM) denying his application for disability retirement benefits. Generally, we grant petitions such as this one only in the following circumstances: the initial 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to vacate the administrative judge’s holding that the appellant failed to demonstrate that he was unable to render useful and efficient service, we AFFIRM the initial decision. BACKGROUND The appellant was a Health Science Specialist with the Department of Veterans Affairs (VA). Initial Appeal File (IAF), Tab 5 at 128. He suffers from chronic left-side spastic hemiparesis, mixed sensorineural hearing loss in the right ear, and psoriatic arthritis. Id. at 37; IAF, Tab 1 at 4. In March 2017, he was terminated when his research project’s funding ended. IAF, Tab 5 at 128. Prior to his position ending, he filed an application for disability retirement under the Federal Employees Retirement System (FERS) based on the above conditions, which was subsequently denied by OPM. Id. at 23-33, 118-120. The appellant requested reconsideration of the decision, and on August 19, 2019, OPM affirmed its initial decision denying his application for disability retirement. Id. at 6-11, 21-22. Although OPM found that he had a medical condition defined as a disease or injury, it found that he failed to demonstrate that he was unable, because of his disease or injury, to render useful and efficient service in his prior position.2 Id. at 8. Based on this finding, OPM found that he failed to meet several other criteria requisite for disability retirement. Id. at 9-10. He subsequently appealed this decision to the Board. IAF, Tab 1. In his appeal, he explained the difficulties caused by his disability in the performance of his job. Id. at 4. He further explained that he was an exemplary employee who consistently had to push through the effects and difficulties of his disability to render effective work for the VA. Id. He also argued that he is “disabled” as defined by the Americans with Disabilities Act (ADA), and that the Supremacy Clause of the U.S. Constitution prohibits OPM from implementing a more restrictive definition of disability than the ADA. Id. After holding a hearing, the administrative judge affirmed OPM’s reconsideration decision denying the appellant’s disability retirement application. IAF, Tab 15, Initial Decision (ID) at 1. In so holding, the administrative judge noted that the appellant suffered no performance deficiencies during his time with the VA. ID at 7. Accordingly, the administrative judge found that the appellant failed to meet his burden of showing that his medical conditions affected his ability to perform the specific work requirements of his position or his ability to report to work. Id. The administrative judge further held that, even if the appellant sufficiently established that he could not render useful and efficient service, he nonetheless failed to prove that accommodation of his condition would have been unreasonable. ID at 7-8. Rather, the administrative judge noted that the agency appeared to be responsive to the appellant’s accommodation requests, but the appellant never requested any accommodation after 2016. ID at 8. The appellant has filed a petition for review, and the agency has responded. Petition for Review (PFR) File, Tabs 1, 3. He repeats his argument that his performance was not deficient because he was an exemplary employee who gave all that he physically could to support the agency’s mission. PFR File, Tab 1 at 4. He further argues that the agency failed to grant his reasonable accommodation3 request for a private workspace that would allow the use of a speakerphone and not require him to cross a busy street between his office space and a separate research building. Id. at 4-5. He also argues that the agency failed to provide a rebuttal for any of his testimony, indicating that it was unable to refute any of his arguments. Id. at 5. Finally, he repeats his argument that the Supremacy Clause precludes OPM’s restrictive definition of a disabled person, which he contends conflicts with the definition set forth in the ADA. Id. at 6. DISCUSSION OF ARGUMENTS ON REVIEW The appellant’s challenge to OPM’s authority to define and implement disability retirement rules is unpersuasive. The appellant argues, both below and on review, that the Supremacy Clause of the Constitution prohibits OPM from creating its own definition of “disabled” that contradicts the ADA.2 PFR File, Tab 1 at 6; IAF, Tab 1 at 4. The administrative judge did not address this argument. Under 5 U.S.C. § 8451(a)(1)(A)-(B), an employee shall be considered disabled for purposes of receiving a disability retirement annuity only if the employee is found by OPM to be unable, because of disease or injury, to render useful and efficient service in the employee’s position. See 5 C.F.R. § 844.102. By contrast, the ADA as amended defines “disability” as, among other things, a physical or mental impairment that substantially limits one or more major life activities of an individual. 42 U.S.C. § 12102(1)(A); see 29 C.F.R. § 1630.2(g) (1)(i). The ADA, as amended, prohibits discrimination against qualified individuals on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a). Thus, Congress has defined the term “disability” differently for different purposes, and the appellant has shown no conflict in this regard. Cf. 2 The ADA Amendments Act, which expanded the definition of “disability” and became effective on January 1, 2009, as well as its implementing regulations, apply in this case. See Thome v. Department of Homeland Security, 122 M.S.P.R. 315, ¶ 23 n.6 (2015). 4 Szejner v. Office of Personnel Management, 99 M.S.P.R. 275, ¶¶ 12-13 (2005) (holding that, although the Board must consider an award of Social Security Administration disability benefits, it is not dispositive in determining eligibility for FERS disability retirement), aff’d, 167 F. App’x 217 (Fed. Cir. 2006). Moreover, the Supremacy Clause only prohibits state and local laws from controlling the Federal government, and thus cannot be used to challenge Federal agencies applying Federal laws. See Augustine v. Department of Veterans Affairs, 429 F.3d 1334, 1339 (Fed. Cir. 2005) (“It is long established that any state or local law which attempts to impede or control the federal government or its instrumentalities is deemed presumptively invalid under the Supremacy Clause.”). Here, OPM actually found that the appellant had a medical condition that is defined as a disease or injury. IAF, Tab 5 at 8-9. However, it also found that he failed to demonstrate that his disease or injury rendered him unable to provide useful and efficient service in his position of employment. Id. at 8. Thus, as OPM held, although the appellant sufficiently demonstrated his medical condition, he failed to demonstrate his eligibility for disability retirement benefits. As set forth below, we agree. The administrative judge correctly found that the appellant failed to demonstrate all of the requisite criteria of eligibility for disability retirement benefits. The administrative judge held that the appellant failed to meet his burden of establishing entitlement to a disability retirement annuity. ID at 8. While we agree with that ultimate conclusion, as set forth below, we vacate a portion of her finding regarding the second criterion, but affirm the initial decision’s conclusion that the appellant failed to demonstrate his entitlement to a disability retirement. In an appeal from an OPM decision denying a disability retirement application, the appellant bears the burden of proof by preponderant evidence. Chavez v. Office of Personnel Management, 111 M.S.P.R. 69, ¶ 6 (2009); 5 C.F.R. § 1201.56(b)(2)(ii). To be eligible for a disability retirement annuity5 under FERS, an employee must demonstrate the following criteria: (1) he completed at least 18 months of creditable civilian service; (2) while employed in a position subject to FERS, he became disabled because of a medical condition, resulting in a deficiency in performance, conduct, or attendance, or, if there is no such deficiency, the disabling medical condition is incompatible with either useful and efficient service or retention in the position; (3) the disabling medical condition is expected to continue for at least 1 year from the date that the application for disability retirement benefits was filed; (4) accommodation of the disabling medical condition in the position held must be unreasonable; and (5) the employee did not decline a reasonable offer of reassignment to a vacant position. Chavez, 111 M.S.P.R. 69, ¶ 6. A determination on eligibility for disability retirement should take into account all competent medical evidence, including both objective clinical findings and qualified medical opinions based on the applicant’s symptoms. Id., ¶ 7. In addition, the determination should include consideration of the applicant’s own subjective evidence of disability and any other evidence of the effect of his condition on his ability to perform in the position he last occupied. Id. It is unclear whether the appellant’s medical conditions rendered him unable to perform useful and efficient service in his position. The appellant here alleged that his medical conditions impacted several major life activities, made the performance of his work requirements increasingly difficult, and challenged OPM’s determination that his disabilities never interfered with his job performance. IAF, Tab 1 at 4. The administrative judge held that the appellant failed to establish the second criterion of eligibility for a disability retirement because he had no performance or attendance deficiencies. ID at 7. She further noted, without much analysis, that he failed to establish that his medical conditions affected his ability to perform specific work requirements. Id. We find that the administrative judge failed to properly analyze whether the6 appellant was unable to render useful and efficient service. Accordingly, we vacate her finding regarding that criterion. There are two methods to demonstrate that an appellant is unable, because of disease or injury, to render useful and efficient service in their position: (1) by showing that the medical condition caused a deficiency in performance, attendance, or conduct; or (2) by showing that the medical condition is incompatible with either useful and efficient service or retention in the position. Jackson v. Office of Personnel Management, 118 M.S.P.R. 6, ¶ 7 (2012). The administrative judge did not sufficiently analyze the appellant’s claim under the second method. See Thieman v. Office of Personnel Management, 78 M.S.P.R. 113, 116 (1998) (explaining that, after an administrative judge found that an appellant did not prove that he had a conduct or attendance deficiency related to his medical conditions, the administrative judge should have addressed whether the appellant’s condition was incompatible under the alternative prong regarding disability). Under the second method, an appellant can show that the medical condition is inconsistent with working in general, working in a particular line of work, or working in a particular type of setting. Jackson, 118 M.S.P.R. 6, ¶ 8. An appellant’s own subjective complaints of inability to work must be seriously considered, particularly when supported by competent medical evidence. Balmer v. Office of Personnel Management, 99 M.S.P.R. 199, ¶ 10 (2005). In Chavez, the Board found that the appellant sufficiently demonstrated that her medical conditions precluded her from performing her specific work requirements as a window clerk. Chavez, 111 M.S.P.R. 69, ¶¶ 8-11. There, the appellant and her doctor noted that her conditions specifically interfered with her ability to interact appropriately with others at work, adapt to stress, and perform tasks requiring sustained concentration or an ability to organize, all of which were required by her position. Id., ¶ 8. 7 Here, the appellant explained that he is paralyzed on his left side, and most profoundly in his left arm. IAF, Tab 1 at 4. He further explained that he is right-handed and has hearing loss in his right ear. Id. The appellant’s position description identifies several major duties, all of which reference conducting various types of interviews in the performance of said duties. IAF, Tab 5 at 73-74. According to the appellant, most of his work and these interviews are conducted over the telephone. PFR File, Tab 1 at 5; IAF, Tab 1 at 4. As explained by the appellant, he has increased difficulty making telephone calls to collect data, given that he writes and types with his right hand and thus has no way to simultaneously hold a telephone. IAF, Tab 1 at 4. This is generally supported by his medical documentation. IAF, Tab 5 at 37, 41-69. Specifically, his doctor noted that the appellant “finds it increasingly difficult with right-sided hearing loss and left-sided hemiplegia to do his job which requires extensive telephone use and writing.” Id. at 37. There is a serious question as to whether this is sufficient to demonstrate that his medical condition was inconsistent with the specific work requirements of a Health Science Specialist. However, we need not resolve this issue on review because, as set forth below, we agree with the administrative judge that the appellant failed to prove that accommodation of his disabling medical condition was unreasonable. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding 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 correctly found that the appellant failed to prove that accommodation of his disabling medical condition was unreasonable. The appellant on review argues that the agency failed to provide his requested accommodations and failed to rebut his testimony. PFR File, Tab 1 at 4-5. The administrative judge found that the appellant failed to prove8 accommodation of his condition was unreasonable, and that the agency was responsive to his accommodation requests to aid him with any difficulty he was experiencing. ID at 7-8. We agree with the administrative judge. Under FERS, an individual is not eligible for disability retirement benefits if there is a reasonable accommodation for the disabling condition in the position held. Confer v. Office of Personnel Management, 111 M.S.P.R. 419, ¶ 29 (2009). Indeed, if there is an accommodation that enables the employee to perform the critical or essential duties of his position of record, the employee may not receive disability retirement. Chavez, 111 M.S.P.R. 69, ¶ 13. Accommodation is defined as a reasonable adjustment made to an employee’s job or work environment that enables the employee to perform the duties of the position. 5 C.F.R. § 844.102. Among possible accommodations are modifying the worksite and obtaining or modifying equipment or devices. Id. The appellant here stated that roughly 70% of his work involves conducting telephonic interviews, which are a part of several of his major work duties. PFR File, Tab 1 at 5; IAF, Tab 5 at 73-74. As discussed above, the appellant’s left-side paralysis and right-side hearing loss made it increasingly difficult to make telephone calls to collect data for his job, given that he writes and types with his right hand. IAF, Tab 1 at 4, Tab 5 at 37. The appellant further explained that, due to the sensitive nature of the data being collected, conducting the calls on a speakerphone was not appropriate. IAF, Tab 1 at 4. In his initial appeal, the appellant suggested that an earpiece or headset would have alleviated these difficulties, but he was never given such accommodations. Id. As held by the administrative judge, the record is devoid of any evidence that the appellant requested any type of headset and that such request was denied by the agency. ID at 8. Nevertheless, as our reviewing court has held, there is no basis in the relevant statutes or regulations that requires an applicant for disability benefits to actually request an accommodation. Gooden v. Office of Personnel Management,9 471 F.3d 1275, 1279 (Fed. Cir. 2006). Similarly, it is irrelevant for disability retirement purposes whether the agency has refused to accommodate an appellant. Dec v. Office of Personnel Management, 47 M.S.P.R. 72, 79 (1991). Rather, the issue is whether the agency is unable to reasonably accommodate the appellant. Gooden, 471 F.3d at 1279. Here, we find that the appellant did not meet this burden by preponderant evidence. See 5 C.F.R. § 1201.56(b)(2)(ii). Although the appellant did not request an earpiece or headset, we find, consistent with the appellant’s allegations on review, that providing him with a hands-free telephone option is a reasonable accommodation that would have enabled him to perform the critical or essential duties of his position. See 5 C.F.R. § 844.102 (noting that an accommodation may include obtaining equipment or devices). Accordingly, he is not entitled to receive disability retirement benefits. See Confer, 111 M.S.P.R. 419, ¶ 29; Chavez, 111 M.S.P.R. 69, ¶ 13. NOTICE OF APPEAL RIGHTS3 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file 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.10 within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 11 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 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. 420 (2017). If you have a representative in this case, and 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: 12 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 13 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.14	Zihlman_Kirk_A_DA-844E-19-0529-I-1_Final_Order.pdf	2024-09-23	KIRK A. ZIHLMAN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-844E-19-0529-I-1, September 23, 2024	DA-844E-19-0529-I-1	NP
475	https://www.mspb.gov/decisions/nonprecedential/Mazzei_RonaldCB-7121-20-0012-V-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD RONALD MAZZEI, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER CB-7121-20-0012-V-1 DATE: September 23, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Ronald Mazzei , Lower Burrell, Pennsylvania, pro se. Angela Madtes , Esquire, Pittsburgh, Pennsylvania, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a request for review of an arbitration decision that granted his grievance. For the reasons set forth below, the appellant’s request for review is DISMISSED as untimely filed without good cause shown. 5 C.F.R. § 1201.155(b). 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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). BACKGROUND Effective January 10, 2017, the agency removed the appellant from his position as a Contract Specialist based on the charge of failure to follow instructions. Request for Review (RFR) File, Tab 1 at 67, 70. While the record is incomplete, it appears that the appellant challenged the action through the applicable negotiated grievance procedure; the agency denied the grievance; and the appellant’s union invoked arbitration on his behalf. Id. at 66, 233. Following a hearing, the arbitrator issued a March 8, 2019 decision in which he granted the appellant’s grievance. Id. at 66-81. Specifically, the arbitrator reversed the removal, imposed a 14-day suspension, and ordered the agency to reimburse the appellant for “any lost or late benefits, . . . fees incurred due to lost wages, and payments of all payroll deductions that were missed due to the termination/removal.” Id. at 79-80. On March 27, 2020, the appellant filed a request for review of the arbitration decision with the Office of the Clerk of the Board,2 seeking to amend the award to include damages to compensate him for the increased tax liability caused by his receipt of the lump sum back pay award. RFR, Tab 1 at 4-12. In an acknowledgment order, the Clerk set forth the jurisdictional and timeliness requirements that the appellant must meet to obtain review. RFR, Tab 2 at 2-3. The Clerk ordered the appellant to file evidence and argument to prove that the Board has jurisdiction over the request for review, his request for review was timely, and/or there existed good cause for any delay in filing his request for review. Id. Citing to the Board’s regulations, the Clerk notified the appellant that a request for review must contain, among other things, legible copies of the 2 The appellant first filed a request for review of the arbitration decision with the Board’s Northeastern Regional Office. See Mazzei v. Department of Veterans Affairs , MSPB Docket No. PH-3443-20-0189-I-1, Initial Decision at 1 (Mar. 27, 2020). The administrative judge dismissed the appeal for lack of jurisdiction and forwarded the appeal to the Office of the Clerk of the Board for docketing in accordance with 5 C.F.R. § 1201.55. Id. at 2. The Clerk’s Office assigned the appeal this new case caption and docket number. RFR, Tab 2 at 1. 2 final grievance or arbitration decision, the agency decision to take the action, and other relevant documents, which may include a hearing transcript and/or recording of the hearing. Id. at 2; 5 C.F.R. § 1201.155(d)(4). The Clerk also warned the appellant that failure to comply with the requirements of the order may result in dismissal of the request for review. Id. at 1. On April 13, 2020, the appellant amended his request for review, providing additional documents such as the union grievance, a list of his equal employment opportunity complaints, the transcript of the arbitration hearing, and his income tax returns. RFR, Tab 3. The appellant did not provide the agency decision notice. Id. On April 19, 2020, he filed an untimely supplement to his request for review.3 RFR, Tab 4. DISCUSSION OF ARGUMENTS ON REVIEW A request for review of an arbitrator’s decision is timely if filed 35 days from the issuance of the arbitration decision or, if the appellant shows that he received the decision more than 5 days after it was issued, within 30 days after the date he received the decision. Kirkland v. Department of Homeland Security , 119 M.S.P.R. 74, ¶ 4 (2013); 5 C.F.R. § 1201.155(b). Since the appellant does not claim that he received the arbitration decision more than 5 days after the March 8, 2019 decision was issued, he should have filed a request for review with the Board by April 12, 2019; thus, it was untimely by more than 11 months. The appellant has the burden of proving by preponderant evidence that the request was timely filed with the Board. 5 C.F.R. § 1201.56(b)(2)(i)(B). The Board will dismiss an untimely request unless the appellant establishes good 3 The deadline to file any supplements to the request for review was April 14, 2020. RFR File, Tab 2 at 3. On April 19, 2020, the appellant submitted a supplement that consisted of a case in which the Board reversed an arbitrator’s decision. RFR, Tab 4 at 4-27. Because it was untimely filed, we need not consider it. Even if we were to do so, it does not compel a different result. See, e.g., Beck v. General Services Administration, 86 M.S.P.R. 489, 493 ¶ 8 (2000) (finding that the existence of new case law that led the appellant to believe that she was eligible to appeal an alleged involuntary resignation did not constitute good cause for the untimely filing).3 cause for the delayed filing. Kirkland, 119 M.S.P.R. 74, ¶ 5. To establish good cause, the appellant must show that he exercised due diligence or ordinary prudence under the particular circumstances of the case. Id.; see Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184 (1980). To determine whether an appellant has shown good cause, the Board will consider the length of the delay, the reasonableness of the excuse and the showing of due diligence, whether the appellant is proceeding pro se, and whether he has presented evidence of the existence of circumstances beyond his control that affected the ability to timely file the request for review. Kirkland, 119 M.S.P.R. 74, ¶ 5; see 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). However, an agency’s failure to notify an employee of his Board appeal rights when such notification is required generally constitutes good cause for late filing. Kirkland, 119 M.S.P.R. 74, ¶ 6. Thus, when an agency provides inadequate notice of Board appeal rights, the appellant is not required to show that he exercised due diligence in attempting to discover his appeal rights, but rather he must show diligence in filing the appeal after learning that he could. Id. In his initial request for review, the appellant asserted that he was under “the assumption [he] would have 30 days to file [such a request], once the 2019 tax year ended.” RFR, Tab 1 at 5. The Clerk of the Board informed the appellant that a request for review of an arbitration decision is timely if it was filed 35 days from the issuance of the decision or, if the decision was received more than 5 days after it was issued, within 30 days after the date of receipt. RFR, Tab 2 at 3. The Clerk ordered him to provide evidence and argument on the issue of timeliness and warned him that noncompliance could result in dismissal of his request for review. Id. at 1, 3. In his response to the Clerk’s order, the appellant recognized that his request for review was untimely, but he asserted that there was good cause for his untimely filing because it was not until February or March4 2020 that he realized that he would have to pay more Federal income tax on his overall income as a result of the back pay award. RFR, Tab 3 at 4-6. Here, the filing period started when the arbitrator issued the decision or when the appellant received the decision, not when he learned of the additional tax obligation. Despite the clear instructions in the Clerk’s order, the appellant provided no explanation as to why he was unable to file the request for review within 30 days of the receipt or 35 days of the issuance of the arbitration decision. Even if he did not understand the Clerk’s order, he failed to identify any ambiguity in the order. When an agency issues a “decision notice” to an employee on a matter that is appealable to the Board, it must provide him with, among other things, notice of his appeal rights, including, if applicable, any right to request Board review of an arbitration decision in accordance with 5 C.F.R. § 1201.155, and the time limits for filing a Board appeal. 5 C.F.R. § 1201.21. Because the appellant’s removal was an appealable action, the agency was obliged to provide him with this information.4 The appellant did not provide the agency’s removal decision, as ordered by the Clerk, and required by the Board’s regulations, and thus, we cannot determine if the required notice was provided. RFR, Tab 2 at 2; 5 C.F.R. § 1201.155(d)(4). He did not allege, and we are not aware of any information, that the agency’s removal decision failed to inform him of his right to request Board review of an arbitration decision within 35 days of its issuance, as required by 5 C.F.R. §§ 1201.21(d)(3), 1201.155(b). As stated above, it was his burden to prove the timeliness of his request for review by preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(B). Under these circumstances, and considering the length of the delay, the appellant has not shown that he acted with due diligence or ordinary prudence or 4 The arbitration award did not include information regarding the appellant’s rights to further Board review. However, the Board regulations do not impose a notification of appeal rights requirement on arbitrators in such matters. Kirkland, 119 M.S.P.R. 74, ¶ 8 n.3.5 that there were circumstances beyond his control that affected his ability to comply with the time limit. We find, therefore, that good cause does not exist for waiving the time limit for filing the request for review. Accordingly, we dismiss the appellant’s request for review as untimely filed. This is the final decision of the Merit Systems Protection Board regarding the timeliness of the appellant’s request for review of the arbitration decision. NOTICE OF APPEAL RIGHTS5 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.6 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file7 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 review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (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 of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 9 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.10	Mazzei_RonaldCB-7121-20-0012-V-1_Final_Order.pdf	2024-09-23	RONALD MAZZEI v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CB-7121-20-0012-V-1, September 23, 2024	CB-7121-20-0012-V-1	NP
476	https://www.mspb.gov/decisions/nonprecedential/Barnett_AngelaDA-0752-21-0069-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ANGELA BARNETT, Appellant, v. DEPARTMENT OF THE INTERIOR, Agency.DOCKET NUMBER DA-0752-21-0069-I-1 DATE: September 23, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Georgia A. Lawrence , Esquire and Shaun Southworth , Esquire, Atlanta, Georgia, for the appellant. Elizabeth Handelsman , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which affirmed the agency’s removal action based on her failure to meet a condition of employment. On petition for review, the appellant challenges the administrative judge’s finding that the agency established that the appellant’s financial 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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). irresponsibility rose to the level of “dishonest conduct,” generally challenges the administrative judge’s factual findings, reasserts her argument that her financial issues did not impact her job performance and that the removal penalty was excessive, and reiterates her belief that she proved her affirmative defenses of discrimination based on race and sex, and reprisal for prior protected equal employment opportunity activity. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL 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 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.2 statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish 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 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The3 Board 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. 420 (2017). If you have a representative in this case, and 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 file4 with the EEOC no later than 30 calendar days after your representative 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.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 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. 5 review within 60 days of the date of issuance of this decision. 5 U.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. 6 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Barnett_AngelaDA-0752-21-0069-I-1_Final_Order.pdf	2024-09-23	ANGELA BARNETT v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. DA-0752-21-0069-I-1, September 23, 2024	DA-0752-21-0069-I-1	NP
477	https://www.mspb.gov/decisions/nonprecedential/Lozoya_RicardoDA-0752-22-0373-I-2_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD RICARDO LOZOYA, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER DA-0752-22-0373-I-2 DATE: September 23, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 David Patrick Willis III , Esquire, Brownsville, Texas, for the appellant. Roberto M Garcia , Esquire, Edinburg, Texas, for the appellant. Felix R. Martinez Velez , Esquire, Laredo, Texas, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which affirmed his removal. On petition for review, the appellant argues that the administrative judge improperly used the Board’s definition of conduct unbecoming rather than the one in the agency’s regulations. He also argues that 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the administrative judge’s finding of nexus is not demeanor-based and relies on hearsay evidence. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 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.2 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 3 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 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. 420 (2017). If you have a representative in this case, and 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: 4 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit 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. 5 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.6	Lozoya_RicardoDA-0752-22-0373-I-2_Final_Order.pdf	2024-09-23	RICARDO LOZOYA v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DA-0752-22-0373-I-2, September 23, 2024	DA-0752-22-0373-I-2	NP
478	https://www.mspb.gov/decisions/nonprecedential/Harris_TabithaAT-0752-20-0370-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD TABITHA HARRIS,1 Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER AT-0752-20-0370-I-1 DATE: September 20, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL2 Mark J. Berkowitz , Esquire, Fort Lauderdale, Florida, for the appellant. Aarrin Golson , Miami, Florida, for the agency. Kaleb M. Kasperson , Centennial, Colorado, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member 1 The appellant passed away during the pendency of this appeal. Her mother, Linda Harris Williams, who is serving as the Personal Representative of her estate, has been substituted for the appellant in this appeal. See 5 C.F.R. § 1201.35. 2 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties 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). FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed for lack of jurisdiction her appeal of her removal pursuant to a Last Chance Settlement Agreement (LCSA ). Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). On review, the appellant reiterates the arguments she made in her close of record submission that the agency failed to engage in the interactive process to determine whether her absence on October 2, 2019, was related to her “longstanding and on-going chronic disability” and failed to accommodate her handicap which caused her recurrent absences. Petition for Review (PFR) File, Tabs 1, 3.3 Such arguments, however, relate to the merits of the agency’s 3 On review, the appellant also seeks to submit for the first time an affidavit from her mother and personal representative concerning the circumstances surrounding the appellant’s absence on October 2, 2019, as well as attached email correspondence dated in November 2019 concerning the appellant’s application for the agency’s leave transfer program. PFR File, Tab 3 at 17-27. We decline to consider this new evidence because the appellant has not shown that the information contained in the affidavit or emails dated prior to the close of the record is new or otherwise explained why she could not have made such arguments or submitted such evidence before the close of the record. See Grassell v. Department of Transportation , 40 M.S.P.R. 554, 564 (1989) (stating2 decision to separate her. By freely signing the waiver of all appeal rights contained in the LCSA, including her right to appeal to the Board, the appellant waived her right to appeal any aspect of the underlying agency action, including her right to assert any affirmative defenses. See Martin v. Department of Defense, 70 M.S.P.R. 653, 657 (1996). To the extent the appellant is asserting that she did not violate the LCSA because she was not absent without leave (AWOL), but rather the agency improperly denied her request for leave without pay (LWOP), such an argument is unpersuasive and constitutes mere disagreement with the administrative judge’s well-reasoned finding that the appellant failed to prove that her absence on October 2, 2019, was due to her medical condition. See, e.g., Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the administrative judge’s findings when she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions); Broughton v. Department of Health and Human Services, 33 M.S.P.R. 357, 359 (1987) (same). The record reflects that the administrative judge weighed the relevant evidence and concluded that the agency properly denied the appellant’s request for LWOP/FMLA and, thus, the appellant’s absence was unauthorized. Initial Appeal File (IAF), Tab 29, Initial Decision (ID) at 5-12. In particular, the administrative judge credited the sworn statement of the appellant’s supervisor, consistent with her contemporaneous calendar notes, that on October 2, 2019, the following occurred: at approximately 8:20 a.m., the appellant called her and told her she would be arriving late because she was waiting for her step-father to arrive so he could be present while contractors were working at her home; at 11:12 a.m., the appellant called again and told her supervisor that her step-father had not arrived and that the contractors were still working; and, because the that, to constitute new evidence, the information contained in the documents, not just the documents themselves, must have been unavailable despite due diligence when the record closed); 5 C.F.R. § 1201.115(d).3 appellant did not have any leave available, the appellant’s supervisor instructed the appellant to report to work, but the appellant did not. ID at 7, 10-11. In contrast, the administrative judge found inherently suspect the appellant’s undated doctor’s note that she was seen on October 2, 2019, and would be able to return on October 22, 2019, which was presented to the agency on November 4, 2019, for the first time more than 1 month later, and after the appellant was informed that she would be marked AWOL. ID at 11. Additionally, the administrative judge found that such evidence was contrary to the medical note that the appellant presented upon her return work on October 4, 2019, which stated that the appellant was seen on October 3, 2019, not October 2, 2019, and would be absent until further notice. Id. Finally, the administrative judge found that the appellant never informed the agency prior to November 4, 2019, that her absence on October 2, 2019, was due to her medical condition, including during a meeting on October 23, 2019, with the appellant, her supervisor, and an Assistant Special Agent in Charge, the purpose of which was to discuss the appellant’s absence on that date. Id. The appellant has failed to show error, and we discern none, in the administration judge’s conclusion that it was more likely than not that the appellant was absent due to the contracting work at her house and not due to her medical condition as she subsequently claimed. Id. The appellant’s arguments thus fail to establish any error in the administrative judge’s finding that the appellant failed to prove by preponderant evidence that she complied with the LCSA. See Bahrke v. U.S. Postal Service , 98 M.S.P.R. 513, ¶ 14 (2005) (noting that, in a removal pursuant to a violation of an LCSA, the agency does not bear the burden of proving that it properly denied the appellant FMLA leave, but rather, the appellant bears the burden of showing that the Board has jurisdiction over her appeal because her waiver of appeal rights in an LCSA is unenforceable); see also Willis v. Department of Defense , 105 M.S.P.R. 466, ¶ 17 (2007) (stating that, to show that a waiver of appeal rights in an LCSA is4 unenforceable, the appellant must show one of the following: (1) he complied with the LCSA; (2) the agency materially breached the LCSA or acted in bad faith; (3) the appellant did not voluntarily enter into the LCSA; or (4) the LCSA resulted from fraud or mutual mistake). NOTICE OF APPEAL RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the 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.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. 420 (2017). If you have a representative in this case, and 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 on6 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or7 other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (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. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.9	Harris_TabithaAT-0752-20-0370-I-1_Final_Order.pdf	2024-09-20	null	AT-0752-20-0370-I-1	NP
479	https://www.mspb.gov/decisions/nonprecedential/Morley_BruceSF-0752-20-0712-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD BRUCE MORLEY, Appellant, v. DEPARTMENT OF THE AIR FORCE, Agency.DOCKET NUMBER SF-0752-20-0712-I-1 DATE: September 20, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Crista Kraics , Stafford, Virginia, for the appellant. Peter Myers and Jonathan Mott , Joint Base Andrews, Maryland, for the agency. Jeremiah Crowley , Maxwell Air Force Base, Alabama, for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman Henry J. Kerner , Member FINAL ORDER The agency has filed a petition for review of the initial decision, which found that the appellant’s resignation was involuntary. For the reasons discussed 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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). below, we GRANT the agency’s petition for review, REVERSE the initial decision, and DISMISS the appeal for lack of jurisdiction. BACKGROUND The facts of this case are somewhat complicated, and our discussion, by necessity, includes information about a prior removal of the appellant and the agency’s rescission of that action, the appellant’s immigration status in Japan, and the combination of those events, which ultimately led to his resignation. Events leading to the appellant’s 2020 removal In or around 1984, the appellant moved to Okinawa, Japan, where he met his wife, had two children, and, in 2003, obtained Japanese resident status. Initial Appeal File (IAF), Tab 9 at 28. In 2016, the agency hired the appellant as a scuba instructor and later promoted him to the position of Supervisory Recreation Specialist at Kadena Air Force Base. Id.; IAF, Tab 30 at 27-29. In August 2019, someone submitted an anonymous complaint alleging that the appellant engaged in sexual misconduct. IAF, Tab 9 at 29, 45 -46. Because the appellant had suffered an on-the-job “near fatal injury” on August 31, 2019, and spent several weeks in the hospital and on workers’ compensation, he did not learn of the complaint until he returned to work in late October 2019. Id. at 29. According to the appellant, when he returned to work, the agency kept him “out of [his] assigned duties,” initiated an investigation into the complaint, and would only inform him that the allegations against him were “of a sexual nature.” Id. at 29-30. The appellant further asserted that, due to the “overwhelming anxiety and depression” of not knowing or fully understanding the circumstances surrounding the investigation or the allegations against him, he sought mental health treatment. Id. at 30. In January 2020, the appellant was ordered to appear for an interview with the Office of Special Investigation (OSI). Id. at 31. On January 24, 2020, the agency proposed the appellant’s removal based on 19 specifications of conduct2 unbecoming a Federal employee. Id. at 45-49. Thereafter, in a March 23, 2020 decision notice, the agency removed the appellant from his position. Id. at 59-60. The appellant timely appealed his removal to the Board. Morley v. Department of the Air Force, MSPB Docket No. SF-0752-20-0352-I-1, Appeal File (0352 AF), Tab 1. During the pendency of that appeal, the agency canceled the removal action and reinstated the appellant in an administrative leave status. IAF, Tab 9 at 35, Tab 18 at 28; 0352 AF, Tab 21 at 4. In doing so, the agency indicated that it intended to issue a new proposed action based on an additional investigation conducted by OSI. 0352 AF, Tab 11 at 1, Tab 21. As such, the administrative judge determined that the agency returned the appellant to the status quo ante and, on October 8, 2020, she issued an initial decision dismissing the appeal as moot. 0352 AF, Tab 34, Initial Decision. The initial decision became the final decision of the Board when neither party filed a petition for review. The appellant’s immigration status in Japan Throughout the period covering the appellant’s removal and reinstatement, issues concerning his Japanese resident status arose. The governments of the United States and Japan have entered into various treaties and related instructions that govern the United States’ military installations and personnel, including civilian personnel, in Japan. The agreement relevant to this appeal is the 1960 Agreement Under Article VI of the Treaty of Mutual Cooperation and Security Between the United States of America and Japan, Regarding Facilities and Areas and the Status of United States Armed Forces in Japan, more commonly referred to as the Status of Forces Agreement or SOFA. IAF, Tab 10, at 33, Tab 11 at 10-16, Tab 38 at 15.2 The SOFA applies to the U.S. Armed Forces, civilian 2 The record contains several official documents pertaining to the SOFA, but we are unable to discern if the record contains the SOFA in its entirety. IAF, Tab 11 at 10-23. Nonetheless, the record also contains declarations from a high-ranking agency official and an agency attorney interpreting the SOFA. IAF, Tab 10 at 33-36, Tab 38 at 14-25. The administrative judge relied on the agency’s declarations in her discussion of the terms of the SOFA. ID at 2-4. The appellant has not objected to the administrative3 component, and dependents. IAF, Tab 11 at 17. As applicable here, the SOFA defines the “civilian component” as “civilian persons of United States nationality who are in the employ of, serving with, or accompanying the United States armed forces in Japan, but excludes persons who are ordinarily resident in Japan.” IAF, Tab 10 at 33-34, Tab 38 at 15. The instructions in place at the time the appellant was hired required civilian component personnel, such as the appellant, to be employed in a status covered under the SOFA. IAF, Tab 38 at 16. As such, on February 26, 2016, the appellant executed a “Statement of Understanding for Self[-]Sponsored SOFA P[e]rsonnel,” in which he indicated that he understood that he needed to change his immigration status with local Japanese authorities from resident of Japan to a status covered under the SOFA. IAF, Tab 11 at 42. It is undisputed that the appellant did not change his immigration status. More than 2 years later, Headquarters U.S. Forces Japan issued another instruction, which provided that individuals ordinarily resident in Japan are not eligible for SOFA status as members of the civilian component until they complete certain immigration procedures, one of which is requesting that the Government of Japan remove the existing immigration status so that the person could be covered by the SOFA. Id. at 17-18. Thus, for persons such as the appellant who had permanent residency status in Japan, the instruction provides that, once the individual changes to SOFA status, he will be “disqualified from permanent residency status.” Id. at 19. On November 24, 2019, the appellant was involved in minor traffic incident with a local Japanese individual, and he subsequently worked with the Japanese authorities to resolve the matter. IAF, Tab 9 at 34-35. Soon thereafter, a member of the local Japanese police contacted the agency expressing concern judge’s reliance on the agency’s declarations, nor has he expressed at any point in this appeal that he disagrees with the agency’s interpretation of the SOFA’s terms. As such, we similarly rely on the agency’s declarations concerning the terms of the SOFA when necessary. 4 that the appellant was a resident alien of Japan while a member of the civilian component, thus bringing the appellant’s irregular SOFA status to light. Id. at 65; IAF, Tab 38 at 21-22. The appellant’s irregular SOFA status became a more prominent issue in June 2020, when the agency was working to reinstate the appellant following its canceled removal action, as discussed above. IAF, Tab 9 at 64-65. Specifically, the agency informed the appellant that it could not reinstate him until he agreed to rescind his Japanese resident status so that it could put him back into the civilian service and have him covered under the SOFA. Id. at 34, 64-69. Nonetheless, as indicated above, at some point in June 2020, the agency did reinstate the appellant, but placed him on administrative leave status. Id. at 35; IAF, Tab 18 at 28. The instant involuntary resignation action currently before the Board While on administrative leave following his reinstatement in June 2020, the agency informed the appellant that his removal action was, in fact, canceled, but that, to be fully reinstated with his prior duties, he must “convert to SOFA status” in compliance with the applicable instructions. IAF, Tab 9 at 36, 69. The agency warned him that failure to meet this requirement by August 17, 2020, could result in immediate removal. Id. Rather than wait for the agency’s deadline to convert his Japanese resident status to a status covered under the SOFA, the appellant resigned from his position, effective August 15, 2020, asserting that his decision to do so was involuntary. IAF, Tab 1 at 9, Tab 9 at 70-74. Thereafter, on September 10, 2020, the appellant filed the instant appeal claiming that he involuntarily resigned. IAF, Tab 1 at 4, 6. Specifically, he argued that his resignation was the result of a “never ending ten-month investigation of dubious origin and duration, refusal to provide evidence in support of the charges against him, repeated efforts to ensure his removal through an unsustainable charge sheet, placement on indefinite administrative leave, and finally, an unreasonable demand to rescind his 17-year Japanese residency or be5 ‘immediately terminated.’” IAF, Tab 9 at 4. Ultimately, the appellant asserted that the totality of the agency’s conduct left him with “no realistic alternative but to resign.” IAF, Tab 1 at 6. Additionally, the appellant stated that he could not “rule out that the harassment is based . . . on age, gender[,] and disability discrimination.” Id. Although the appellant initially requested a hearing, id. at 2, he later withdrew that request, IAF, Tab 33. Accordingly, the administrative judge issued an initial decision based on the written record. IAF, Tab 44, Initial Decision (ID) at 1. Therein, she focused solely on the issues surrounding the appellant’s immigration status and stated that the agency only offered him the options of surrendering his Japanese residency and converting to SOFA status, knowing that such an action would jeopardize his right to stay in Japan with his family if he was later removed again, or refusing to comply with the SOFA and being removed for failing to do so. ID at 16. She concluded that “[t]his was no real choice.” Id. As such, she found that the appellant’s resignation was involuntary and, thus, that the Board has jurisdiction over his appeal. ID at 16-17. Accordingly, she ordered the agency to reinstate the appellant.3 ID at 17. In the initial decision, the administrative judge ordered the agency to afford the appellant interim relief if either party filed a petition for review, specifically ordering the agency to effect the appellant’s appointment to his prior position and to provide the appellant with “the pay and benefits of his position while any petition for review is pending, even if the agency determines that the appellant’s return to or presence in the workplace would be unduly disruptive.” ID at 18. 3 A separation pursuant to an involuntary resignation is a constructive removal action, entitling the employee to the procedural due process protections of 5 U.S.C. § 7513. Thomas v. Department of Housing and Urban Development, 78 M.S.P.R. 25, 29 (1998 ). The agency’s removal action must comport with the minimum procedures that satisfy the constitutional requirements of due process of law, and the action must be lawful in its entirety. Drummonds v. Department of Veterans Affairs, 58 M.S.P.R. 579, 584-85 (1993). If, as here, the agency’s removal action does not meet both of these requirements, then it must be reversed. Id.6 The agency has filed a petition for review of the initial decision. Petition for Review (PFR) File, Tab 1. It argues that the administrative judge erred in basing her decision on speculation regarding possible future disciplinary action, and “in opining on whether and how the United States should comply with its international agreement with Japan.” Id. at 8-13. The appellant has filed a response to the agency’s petition for review, wherein he argues that the agency failed to comply with the interim relief order. PFR File, Tab 4 at 4-6. The agency has filed a reply to the appellant’s response. PFR File, Tab 5. ANALYSIS The appellant has the burden of proving by preponderant evidence that the Board has jurisdiction over his appeal. 5 C.F.R. § 1201.56(b)(2)(i)(A). An employee-initiated action, such as a resignation, is presumed to be voluntary and, thus, outside the Board’s jurisdiction. Vitale v. Department of Veterans Affairs, 107 M.S.P.R. 501, ¶ 17 (2007). An involuntary resignation, however, is tantamount to a removal and, therefore, is within the Board’s jurisdiction. Garcia v. Department of Homeland Security, 437 F.3d 1322, 1328 (Fed. Cir. 2006) (en banc); Salazar v. Department of the Army, 115 M.S.P.R. 296, ¶ 9 (2010). To overcome the presumption that a resignation is voluntary, the employee must show that it was the result of the agency’s misinformation, deception, or coercion. Vitale, 107 M.S.P.R. 501, ¶ 19. To establish involuntariness on the basis of coercion, the appellant must also show that the agency effectively imposed the terms of his resignation, that he had no realistic alternative but to resign, and that his resignation was the result of improper acts by the agency. Id. The touchstone of this analysis is whether, considering the totality of the circumstances, factors operated on the employee’s decision -making process that deprived him of freedom of choice. Id.7 The appellant failed to prove that his resignation was involuntary due to the circumstances surrounding his immigration status. As explained above, in finding the appellant’s resignation involuntary, the administrative judge reasoned that the agency provided the appellant with two options: (1) surrender his Japanese residency and come into compliance with the SOFA, at which point the agency was “very likely to remove him again based on additional charges not included in the original removal,” causing the appellant also to lose his SOFA status; or (2) refuse to surrender his Japanese residency and be removed for failing to comply with SOFA. ID at 14-15. The administrative judge concluded that “[t]his is a more drastic lose/lose situation than the difficult choices that may be present in other involuntary action appeals,” and that the appellant had no “realistic alternative.” ID at 15. The administrative judge reasoned that, instead of only providing the appellant with these two choices, the agency could have permitted the appellant to remain in his irregular SOFA status during any reissued adverse action process, and the appellant could have waited to see how that process would unfold before making any consequential decisions. ID at 15. Ultimately, the administrative judge concluded that the appellant proved that the agency coerced him into resigning.4 ID at 16. As noted above, the agency argues on review that the administrative judge erred in two regards: first, that her decision is based on speculation that 4 As noted, the administrative judge ordered the agency to afford the appellant interim relief if either party filed a petition for review. ID at 17-18. The appellant argues on review that the agency failed to comply with the interim relief order. PFR File, Tab 4 at 4-6. As fully explained below, we reverse the initial decision and find that the appellant failed to prove that his resignation was involuntary. Thus, the Board lacks jurisdiction over the appeal. In light of this finding, we exercise our discretion not to dismiss the agency’s petition for review regardless of whether the agency complied with the administrative judge’s interim relief order. PFR File, Tab 1 at 14-19, Tab 4 at 4-6; see Lovoy v. Department of Health and Human Services, 94 M.S.P.R. 571, ¶ 28 (2003 ) (declining to dismiss an agency’s petition for review for failure to provide interim relief when the issue of the Board’s jurisdiction over the appeal was not yet resolved). To the extent the appellant’s pleadings on review include a motion to dismiss the agency’s petition for review based on an alleged failure to provide interim relief, such a motion is, therefore, denied.8 subsequent disciplinary action was imminent; and second, that she inappropriately “opined” on how the United States should honor its agreements with a foreign country. PFR File, Tab 1 at 4-5, 8-13. We address each argument in turn below, and, for the reasons explained, reverse the administrative judge’s findings to conclude that the appellant failed to prove that his resignation was involuntary. The two options set forth by the administrative judge are both premised on the assumption that subsequent disciplinary action would be forthcoming and that the appellant’s decision on how to deal with his immigration status would determine the nature and basis for such disciplinary action. Regarding the choice to refuse to forfeit his Japanese resident status and convert to a status covered under the SOFA, the record shows that the agency did, indeed, inform the appellant that his failure to bring his immigration status within the terms of the SOFA by August 17, 2020, “may result in immediate removal.” IAF, Tab 9 at 69. Thus, the administrative judge’s conclusion that this option would result in discipline is not speculative. However, regarding the choice to relinquish his Japanese resident status to become covered under the SOFA, after which the administrative judge presumed that the appellant would likely face removal based on the results of the OSI investigation, we observe that the agency had not, at that time, proposed the appellant’s removal, nor does the record establish that it communicated to the appellant that disciplinary action was imminent. Generally, conjecture or anticipation of an adverse action does not constitute coercion or duress on the part of the agency. See Holman v. Department of the Treasury, 9 M.S.P.R. 218, 220 (1981), aff’d, 703 F.2d 584 (Fed. Cir. 1982) (Table). Although the record includes a May 18, 2020 email from an agency attorney to the appellant’s attorney indicating that he recently learned that the investigation into the appellant’s alleged misconduct had a criminal component and that the “intended way” forward was to “reinitiate the proceedings incorporating the new information,” IAF, Tab 9 at 62, at the time the appellant resigned, approximately9 3 months later, the agency had not proposed an adverse action, IAF, Tab 1 at 9. Thus, the appellant was merely anticipating the imposition of an adverse action, which does not render his resignation coercive. See Holman, 9 M.S.P.R. at 220. Regardless, even if the appellant had established that an adverse action was imminent, he nonetheless would ultimately have been faced with the same options. When distilled, the appellant was simply required to decide whether he wanted to maintain his Japanese resident status to ensure his right to stay in Japan with his family or whether he wanted to forfeit that status, thereby regularizing his SOFA status and complying with the agency’s requirement under the United States’ treaty obligations with Japan. We acknowledge that this would have been a difficult and unpleasant choice. Nevertheless, the Board has held that the fact that an employee is faced with the unpleasant choice of either resigning—which, here, has allowed the appellant to maintain his Japanese resident status—or opposing a potential removal action—which, here, the agency indicated would have resulted if the appellant refused to regularize his SOFA status—does not rebut the presumed voluntariness of the employee’s ultimate choice . See Searcy v. Department of Commerce, 114 M.S.P.R. 281, ¶ 12 (2010) (stating that it is well-established that the fact than an employee is faced with the unpleasant choice of either resigning or opposing a potential adverse action does not rebut the presumed voluntariness of his ultimate choice). Rather, the appellant operated with the freedom of choice to determine which potential consequence would have been less disruptive to his life. Therefore, we find that the appellant failed to prove that his choice to resign was the product of coercion on the part of the agency.5 See Vitale, 107 M.S.P.R. 501, ¶ 19. 5 To find otherwise would lead to the peculiar result wherein the agency is required to reinstate the appellant to a position for which he is required to obtain SOFA status—a requirement he expressly decided against fulfilling. Indeed, this is the very predicament the parties faced when attempting to comply with the administrative judge’s interim relief order. Thus, to find that the appellant’s resignation was involuntary would place the parties in a situation where the challenges surrounding the appellant’s immigration status would continue in perpetuity. 10 Regarding the administrative judge’s discussion concerning the agency’s failure to provide the appellant with the opportunity to remain in an irregular SOFA status during the pendency of any reissued adverse action, we agree with the agency that the Board is without authority to instruct an agency how to comply with the United States’ international agreements or order an agency to make allowances for an employee who is not in compliance with the terms of those agreements. We understand the administrative judge’s explanation that the agency had placed the appellant in an administrative leave status while allowing him to maintain an irregular SOFA status following his reinstatement and, thus, could have conceivably permitted him to do the same here. However, having bent the requirement under the United States’ treaty obligations once, the agency was not obligated to do so again. Importantly, the record establishes that the local Japanese authorities had inquired with the agency at least twice—the second time on June 2, 2020—about the appellant’s irregular SOFA status, apparently prompting the agency to impose a deadline for the appellant to regularize his SOFA status. If the agency had allowed the appellant to remain in an indefinite administrative leave status, it would have been unable to respond to the Japanese authorities with a definitive timeframe for the resolution of the appellant’s status. Such a circumstance would contradict a general expectation that an agency comply with the United States’ treaty obligations. Indeed, the Board has recognized such an expectation specifically within the context of a SOFA between the United States Government and the North Atlantic Treaty Organization (NATO). In Montee v. Department of the Army, 110 M.S.P.R. 271 (2008), the Board concluded that an agency appropriately withdrew a tentative job offer because the selectee’s appointment would have violated the SOFA between the United States and NATO. Montee, 110 M.S.P.R. 271, ¶ 10. Thus, the Board implicitly reasoned that an agency can be expected to act in accordance with the terms of a SOFA. Similarly, here, the agency can be expected to require its employees to obtain the proper immigration11 status as required in the SOFA, regardless of any prior acts. Accordingly, we find no issue with the agency’s requirement that the appellant convert his immigration status to one covered under the SOFA. The appellant failed to prove that any other circumstance rendered his resignation involuntary. Because the administrative judge relied exclusively on the appellant’s purported choice between relinquishing his Japanese residency and obtaining a status under the SOFA or maintaining his Japanese residency and being removed from his position for failing to obtain a status under the SOFA, she did not consider whether the working conditions asserted by the appellant were so intolerable that his resignation should be deemed involuntary. ID at 12-16. Nor did she address the appellant’s claims of discrimination. Id.; IAF, Tab 1 at 6. As such, we do so here. When considering whether an appellant’s resignation is involuntary due to intolerable working conditions, the ultimate question is whether, under all the circumstances, working conditions were made so difficult by the agency that a reasonable person in the employee’s position would have felt compelled to resign. See McCray v. Department of the Navy, 80 M.S.P.R. 154, ¶ 8 (1998). Here, the appellant asserted that the circumstances surrounding the investigation, the agency’s refusal to provide evidence in support of the charge against him, its “repeated efforts to ensure his removal through an unsustainable charge sheet,” and his placement on “indefinite administrative leave” created conditions so intolerable that he was forced to resign. IAF, Tab 9 at 4. Although the appellant’s circumstances undoubtedly caused him stress, we find that he has failed to show that such circumstances were so intolerable that a reasonable person in his position would have felt compelled to resign. With respect to the appellant’s alleged lack of information about the investigation, the agency has asserted that OSI is a Federal law enforcement and investigative agency that generally does not coordinate its investigations with the12 subjects of those investigations. IAF, Tab 10 at 5-6. Although the appellant may have found such a situation to be frustrating and stressful, he has failed to explain how, or show that, it was intolerable. See Miller v. Department of Defense, 85 M.S.P.R. 310, ¶ 32 (2000) (explaining that an employee is not guaranteed a working environment free of stress). Regarding the charges against the appellant in the removal action, which, he alleges, could not be sustained, it is undisputed that the agency rescinded the removal action 2 months prior to the appellant’s resignation. Regardless, the agency removed the appellant in March 2020— approximately 5 months before his resignation. The Board has explained that the focus in an involuntary resignation appeal is on the circumstances immediately preceding the appellant’s action. Id., ¶ 10. Thus, even if the agency was unable to support its removal action, that action could not have had an immediate impact on the appellant’s decision to resign. See Searcy, 114 M.S.P.R. 281, ¶ 13 (concluding that a 5 -month lapse of time between an event and an appellant’s resignation undercut the assertion that his working conditions were so intolerable as to have compelled his resignation). Finally, the agency intended for the “indefinite” administrative leave referenced by the appellant to terminate on or around August 17, 2020, the date by which the appellant was required to regularize his SOFA status. IAF, Tab 9 at 36, 69. As such, the administrative leave was not actually “indefinite.” Based on the foregoing, we conclude that the appellant failed to prove that his working conditions were so intolerable as to render his resignation involuntary. Regarding the appellant’s claims of discrimination, the Board will address allegations of discrimination only insofar as they relate to the issue of voluntariness and not whether they would establish discrimination as an affirmative defense. See, e.g., Pickens v. Social Security Administration, 88 M.S.P.R. 525, ¶ 6 (2001). Thus, evidence of discrimination ultimately goes to the question of coercion. Id. Here, the appellant claims that he was discriminated against on the bases of age, gender, and disability. IAF, Tab 1 at 6.13 We have reviewed the record, and the appellant has not put forth any evidence to show that such alleged discrimination occurred in the first instance, let alone any evidence that such discrimination affected the voluntariness of his decision to resign. Accordingly, we find that the appellant failed to prove that discrimination created an environment wherein the appellant felt coerced into resigning. Based on the foregoing, we reverse the initial decision and find that the appellant failed to establish that his resignation was involuntary. Because the Board lacks jurisdiction over voluntary resignation appeals, we dismiss this appeal for lack of jurisdiction. NOTICE OF APPEAL RIGHTS6 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. 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.14 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 you15 receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, and 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: 16 Office of Federal 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.7 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 7 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of 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. 17 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.18	Morley_BruceSF-0752-20-0712-I-1_Final_Order.pdf	2024-09-20	BRUCE MORLEY v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. SF-0752-20-0712-I-1, September 20, 2024	SF-0752-20-0712-I-1	NP
480	https://www.mspb.gov/decisions/nonprecedential/Waddell_Bryan_W_AT-0752-21-0009-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD BRYAN W. WADDELL, Appellant, v. DEPARTMENT OF THE AIR FORCE, Agency.DOCKET NUMBER AT-0752-21-0009-I-1 DATE: September 20, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Bryan W. Waddell , Brandon, Florida, pro se. Holly L. Buchanan , Esquire, Eglin Air Force Base, Florida, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which affirmed his removal based on the charges of lack of candor and violation of security regulation procedures. On review, the appellant argues, among other things, that other employees committed more serious security violations and were not removed and that the agency failed to accommodate his medical condition. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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). Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the 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 represent a statement of how courts will rule regarding which cases fall within their 2 A charge of lack of candor requires proof that (1) the employee gave incorrect or incomplete information, and (2) he did so knowingly. Fargnoli v. Department of Commerce, 123 M.S.P.R. 330, ¶ 17 (2016). The administrative judge did not make an explicit finding regarding the second element. Based on our review of the record, it is clear that the appellant acted knowingly when he completed a document reflecting that he had performed certain equipment and security checks when he failed to do so. 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.2 jurisdiction. If you wish 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 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The3 Board 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. 420 (2017). If you have a representative in this case, and 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 file4 with the EEOC no later than 30 calendar days after your representative 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 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. 5 review within 60 days of the date of issuance of this decision. 5 U.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. 6 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Waddell_Bryan_W_AT-0752-21-0009-I-1_Final_Order.pdf	2024-09-20	BRYAN W. WADDELL v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. AT-0752-21-0009-I-1, September 20, 2024	AT-0752-21-0009-I-1	NP
481	https://www.mspb.gov/decisions/nonprecedential/Kemp_MichaelDA-1221-23-0434-W-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MICHAEL S. KEMP, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER DA-1221-23-0434-W-1 DATE: September 20, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Michael S. Kemp , Deville, Louisiana, pro se. John M. Breland and Nedra R. Frisby , Vicksburg, Mississippi, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member* *Member Kerner recused himself and did not participate in the adjudication of this appeal. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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). FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which denied his request for corrective action in this individual right of action appeal .2 On petition for review, the appellant argues that he reasonably believed the agency’s order requiring him to travel for work-related reasons on a Federal holiday violated a law, rule, or regulation, or constituted an abuse of authority. He also reasserts that the agency took various personnel actions against him, including terminating him during his probationary period, in retaliation for disclosing said violations and abuse. 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). We conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review.3 Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).4 2 The appellant has filed a petition for review of the initial decision in a separate appeal alleging that the agency discriminated against him in violation of the Uniformed Services Employment and Reemployment Rights Act when, among other things, it terminated him during his probationary period. Kemp v. Department of the Army , MSPB Docket No. DA-4324-23-0255-I-1. The Board addresses that matter in a separate decision. 3 We take notice that the agency belatedly filed a response to the petition for review, including a motion addressing the untimeliness. Petition for Review (PFR) File, Tab 3. We decline to consider the agency’s response as the agency has not demonstrated good cause for the delay.2 ¶2In the initial decision, the administrative judge adopted the appellant’s characterization of a Comptroller General decision as a Government Accountability Office report and found that the document did not have the force and effect of law. Initial Appeal File (IAF), Tab 21, Initial Decision (ID) at 9. The referenced document is a decision by the Comptroller General, stating that “the head of a department or agency may require the services of employees on a holiday in cases of necessity or emergency.” To the Chairman of the Civil Service Commission , 44 Comp. Gen. 274, 275 (1964); IAF, Tab 5 at 22. To the extent that the administrative judge erred in finding that the decision was not binding legal authority, we need not consider this question further because we agree with the administrative judge’s alternative finding that it was unreasonable for the appellant to believe that he could not be instructed to travel for work on a holiday. ID at 9. In this regard, the appellant acknowledges that there was no evidence that the authority to instruct employees to work on a holiday had been delegated, IAF, Tab 17 at 5, but it is unreasonable for an employee of the Department of the Army to believe that such authority rested solely with the Secretary of the Army and had not been delegated. Thus, we find that the appellant lacked a reasonable belief in his disclosure. 4 On petition for review, the appellant additionally argues that the administrative judge erred by not considering that he was perceived as a whistleblower. PFR File, Tab 1 at 10-11. The administrative judge notified the appellant regarding how to establish jurisdiction over an individual right of action appeal as a perceived whistleblower, Initial Appeal File (IAF), Tab 3 at 5-6, yet, contrary to his assertions, the appellant did not raise the issue before the administrative judge, see IAF, Tabs 5, 10, 12, 14. Therefore, the Board need not consider it on review. See Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (explaining that the Board generally will not consider an argument raised for the first time in a petition for review absent a showing that it is based on new and material evidence not previously available despite the party’s due diligence). Furthermore, the appellant has not shown that he exhausted his remedy with the Office of Special Counsel (OSC) on this issue. See IAF, Tab 1 at 12, Tab 5 at 23-38. As a result, he has not established the Board’s jurisdiction over this claim. See King v. Department of the Army, 116 M.S.P.R. 689, ¶ 9 (2011) (stating that an appellant must establish that she exhausted her remedies with OSC on whether the agency perceived her as a whistleblower). 3 NOTICE OF APPEAL RIGHTS5 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the 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: 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.4 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and 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 any5 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s6 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Kemp_MichaelDA-1221-23-0434-W-1_Final_Order.pdf	2024-09-20	MICHAEL S. KEMP v. DEPARTMENT OF THE ARMY, MSPB Docket No. DA-1221-23-0434-W-1, September 20, 2024	DA-1221-23-0434-W-1	NP
482	https://www.mspb.gov/decisions/nonprecedential/Kemp_MichaelDA-4324-23-0255-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MICHAEL S. KEMP, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER DA-4324-23-0255-I-1 DATE: September 20, 2024 THIS ORDER IS NONPRECEDENTIAL1 Michael S. Kemp , Deville, Louisiana, pro se. John M. Brelan and Nedra R. Frisby , Vicksburg, Mississippi, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member* *Member Kerner recused himself and did not participate in the adjudication of this appeal. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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). REMAND ORDER ¶1The appellant has filed a petition for review of the initial decision, which denied his request for corrective action under the Uniformed Services Employment and Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C. §§ 4301-4335) (USERRA). For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the initial decision , and REMAND the case to the regional office for further adjudication in accordance with this Remand Order. DISCUSSION OF ARGUMENTS ON REVIEW ¶2On petition for review, the appellant renews his arguments that the agency discriminated against him based on his military service when it subjected him to more stringent positional testing, denied him holiday leave, and terminated him during his probationary period. Petition for Review (PFR) File, Tabs 1, 5. The appellant also argues that the administrative judge should not have denied his motion to compel as untimely. PFR File, Tab 1 at 4-5, 8, Tab 5 at 4. ¶3For the reasons explained in the initial decision, we agree with the administrative judge that the current record does not support a finding of uniformed service discrimination. Initial Appeal File (IAF), Tab 17, Initial Decision (ID). However, we also agree with the appellant that his motion to compel was timely and that the appeal needs to be remanded for completion of discovery.2 ¶4The administrative judge denied the appellant’s motion to compel on the ground that the appellant had 30 days from the date of the acknowledgment order, 2 The initial decision was issued the day after the administrative judge denied the appellant’s motion, and therefore, the appellant did not have a full 10 days to object to the ruling as contemplated under 5 C.F.R. § 1201.55(b). Under these circumstances, we find that the appellant’s failure to object does not preclude him from raising the issue on review. Cf. Brown v. U.S. Postal Service , 64 M.S.P.R. 425, 429 (1994) (finding that the appellant’s failure to object to the administrative judge’s ruling on his motion to compel precluded him from objecting to the ruling on review).2 April 14, 2023, to initiate discovery but did not serve his discovery request on the agency until June 7, 2023. IAF, Tab 16 at 1; see 5 C.F.R. § 1201.73(d)(1). However, the record reflects that the appellant’s June 7, 2023 request was his second discovery request, which he served on the agency within 10 days of receiving the agency’s response and supplement to his initial request, pursuant to 5 C.F.R. § 1201.73(d)(2). IAF, Tab 14. The record is also consistent with the appellant’s assertion that he timely served his initial request on May 7, 2023,3 because the agency responded to the appellant’s “First Set of Interrogatories, Requests for Admissions and Requests for the Production” on May 26, 2023. IAF, Tab 15 at 4, 8. Therefore, we disagree with the administrative judge that the appellant’s motion was untimely. ¶5Furthermore, we find that at least some of the material covered in the motion to compel could be relevant and material to the issue of whether the appellant’s termination was motivated by antimilitary animus. The U.S. Court of Appeals for the Federal Circuit has held that discriminatory motivation under USERRA may be reasonably inferred from a variety of factors, including proximity in time between the employee’s military activity and the adverse employment action, inconsistencies between the proffered reason and other actions of the employer, an employer’s expressed hostility towards members protected by the statute together with knowledge of the employee’s military activity, and disparate treatment of certain employees compared to other employees with similar work records or offenses. Sheehan v. Department of the Navy, 240 F.3d 1009, 1014 (Fed. Cir. 2001). Among other things, the appellant moved to compel the agency to provide information concerning whether the agency had approved his absence for medical reasons on the date in question, and the circumstances involved in the agency’s decision to record his absence as absence without leave. IAF, Tab 14 at 4, 8. The requested information could be relevant to the issues of whether the agency’s stated reasons for its action were 3 The appellant’s initial discovery request is not in the record.3 consistent with the record and whether the appellant was similarly situated to his proffered comparators. See Sheehan, 240 F.3d at 1014. ¶6We therefore find it appropriate to remand the appeal for the administrative judge to rule on the merits of the appellant’s motion. ORDER ¶7For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order. On remand, the administrative judge shall rule on the merits of the appellant’s motion to compel. The administrative judge shall, as appropriate, allow for further development of the record in light of any additional material that the agency provides to the appellant pursuant to the discovery ruling. The administrative judge shall then issue a new initial decision, accounting for any additional evidence and argument that the parties file after discovery is complete. The administrative judge may incorporate the findings from his previous initial decision to the extent appropriate. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.4	Kemp_MichaelDA-4324-23-0255-I-1_Remand_Order.pdf	2024-09-20	MICHAEL S. KEMP v. DEPARTMENT OF THE ARMY, MSPB Docket No. DA-4324-23-0255-I-1, September 20, 2024	DA-4324-23-0255-I-1	NP
483	https://www.mspb.gov/decisions/nonprecedential/Mott_SheilaAT-0752-14-0451-X-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SHEILA MOTT, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER AT-0752-14-0451-X-1 DATE: September 20, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Michael W. Macomber , Esquire, Albany, New York, for the appellant. Kristin A. Langwell , Esquire, Tampa, Florida, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER This compliance proceeding was initiated by the appellant’s petition for enforcement of the Board’s November 16, 2018 Order in Mott v. Department of Veterans Affairs , MSPB Docket No. AT-0752-14-0451-M-1, in which the administrative judge mitigated the appellant’s removal to a demotion to a 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). nonsupervisory GS-07 position. Mott v. Department of Veterans Affairs , MSPB Docket No. AT-0752-14-0451-M-1, Remand File (RF), Tab 29, Remand Initial Decision (RID). On March 16, 2021, the administrative judge issued a compliance initial decision finding the agency not in compliance with the Board’s November 16, 2018 Order. Mott v. Department of Veterans Affairs , MSPB Docket No. AT-0752-14-0451-C-1, Compliance File (CF), Tab 4, Compliance Initial Decision (CID). For the reasons discussed below, we find the agency in compliance and DISMISS the petition for enforcement. DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE On February 10, 2014, the appellant appealed her removal from the position of GS-09 Supervisory Program Specialist. Mott v. Department of Veterans Affairs , MSPB Docket No. AT-0752-14-0451-I-1, Initial Appeal File (IAF), Tab 1. On April 15, 2016, the administrative judge issued an initial decision mitigating the appellant’s removal to a demotion to a nonsupervisory GS-05 position. IAF, Tab 45, Initial Decision. On May 20, 2016, the appellant filed a petition for administrative review of the initial decision with the Board, and on September 16, 2016, the Board issued a final order denying the petition for review and affirming the initial decision. Mott v. Department of Veterans Affairs, MSPB Docket No. AT-0752-14-0451-I-1, Final Order (Sept. 16, 2016); Petition for Review File, Tabs 1-4, 10. On November 16, 2016, the appellant filed a petition for review of the Board’s September 16, 2016 Final Order with the U.S. Court of Appeals for the Federal Circuit, and on January 26, 2018, the court issued a decision affirming the Board’s decision in part and reversing it in part. Mott v. Department of Veterans Affairs , 723 F. App’x 979, 984-85 (Fed. Cir. 2018). The court found that the Board abused its discretion in sustaining one of the agency’s charges and thus remanded the matter so the Board could consider whether a new penalty should apply in the absence of that charge. Id. at 983-85. 2 On remand, the administrative judge issued a November 16, 2018 remand initial decision finding that, in light of the Federal Circuit’s reversal of one of the charges, the new maximum reasonable penalty was mitigation to a nonsupervisory GS-07 position. RID at 5-6. The administrative judge ordered the agency to cancel the appellant’s removal and substitute in its place a demotion to a position at the grade of GS-07 or higher within the appellant’s commuting area. RID at 6-7. The administrative judge further ordered the agency to provide the appellant the appropriate amount of back pay with interest and benefits. Id. The remand initial decision became the final decision of the Board on December 1, 2018, after neither party petitioned the full Board for review. RID at 8-9. On February 17, 2021, the appellant filed a petition for enforcement of the Board’s November 16, 2018 Order, alleging that the agency had not yet paid her appropriate back pay or sent her any proof of compliance. CF, Tab 1 at 4-12. On March 5, 2021, the agency responded to the petition for enforcement, stating that it had not yet been able to obtain complete information from the Defense Finance and Accounting Service (DFAS) regarding any payments made to the appellant. CF, Tab 3 at 4-5. The agency included in its response evidence that the appellant had been paid on two separate occasions in the sums of $33,820.52 and $5,757.84 but could not explain whether these sums represented all of the back pay, benefits, and interest owed to the appellant. Id. On March 16, 2021, the administrative judge issued a compliance initial decision granting the petition for enforcement. CID. The administrative judge found that the agency was not in compliance because it had not yet demonstrated that it had paid the appellant the required back pay, benefits, or interest. CID at 4-5. The administrative judge therefore ordered the agency to pay the appellant all back pay, benefits, and interest owed. CID at 5-6. Neither party filed any submission with the Clerk of the Board within the time limit set forth in 5 C.F.R. § 1201.114. As such, pursuant to 5 C.F.R. § 1201.183(b)-(c), the administrative judge’s findings of noncompliance became final, and the3 appellant’s petition for enforcement was referred to the Board for a final decision on issues of compliance. Mott v. Department of Veterans Affairs , MSPB Docket No. AT-0752-14-0451-X-1, Compliance Referral File (CRF), Tab 1. On May 5, 2021, the agency filed a new submission on compliance with the Board. CRF, Tab 2. The agency stated in the pleading that it had paid the appellant what it believed was the correct amount of back pay and interest, but it was still discussing the matter further with the appellant to determine whether compliance had been reached. Id. at 4-5. The agency included with its submission evidence that the back pay funds had been paid to the appellant. Id. at 8-14. On May 12, 2021, the agency filed an additional submission on compliance. CRF, Tab 3. In the second submission, the agency averred that the parties were in agreement that the agency had paid the appellant the correct amount of back pay and interest and included with this submission calculations of the payments made to the appellant. Id. at 4, 7-16. The agency also stated, however, that the parties were still working to restore all leave owed to the appellant. Id. at 4. On September 2, 2021, the agency submitted its final declaration on compliance. CRF, Tab 4. In the final submission, the agency included evidence demonstrating that the agency had finally restored all leave owed to the appellant. Id. at 18-21. The agency also included statements from the appellant’s representative indicating that the appellant agreed that the agency had reached full compliance. Id. at 21. ANALYSIS 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 she 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 the4 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 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). As a threshold matter, we note that, while the appellant did not file her petition for enforcement until more than 2 years after the November 2018 Order, we find the petition for enforcement to be timely filed. The Board’s 30 -day deadline to file a petition for enforcement does not begin to run until after the agency has provided the appellant written notice of compliance. Shamblen v. U.S. Postal Service , 54 M.S.P.R. 55, 57-58 (1992). Because there was no dispute that, as of the time of the filing of the petition for enforcement, the agency had not yet provided the appellant with the requisite written notice of compliance, the appellant’s petition for enforcement was timely. CID at 3. The agency’s outstanding compliance issue was its obligation to pay the appellant all back pay, benefits, and interest owed to her. The agency’s combined submissions show that the agency has now reached full compliance. The agency has demonstrated that it paid all back pay and interest owed to the appellant, and provided detailed calculations of the payments. CRF, Tab 2 at 8-14, Tab 3 at 7-16. The agency has further shown that it also restored all leave owed to the appellant. CRF, Tab 4 at 18-21. Finally, the agency’s submission reveals that the appellant agrees that the agency has reached full compliance. Id. at 21. Accordingly, in light of the agency’s evidence of compliance and the appellant’s statements of satisfaction, the Board finds the agency in compliance and dismisses the petition for enforcement. This is the final decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).5 NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO REQUEST ATTORNEY FEES AND COSTS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set out at Title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees motion with the office that issued the initial decision on your appeal. 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 possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is 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 will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 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 you7 receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 8 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit 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 Protection Board appellants before the 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.10	Mott_SheilaAT-0752-14-0451-X-1_Final_Order.pdf	2024-09-20	SHEILA MOTT v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-14-0451-X-1, September 20, 2024	AT-0752-14-0451-X-1	NP
484	https://www.mspb.gov/decisions/nonprecedential/Tavernini_KellyAT-1221-20-0208-W-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD KELLY TAVERNINI, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER AT-1221-20-0208-W-1 DATE: September 20, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jerry Girley , Esquire, Orlando, Florida, for the appellant. Tsopei Robinson , Esquire, West Palm Beach, Florida, for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman Henry J. Kerner , Member* *Member Kerner recused himself and did not participate in the adjudication of this appeal. FINAL ORDER The appellant has filed a petition for review of the initial decision, which denied corrective action in her individual right of action (IRA) appeal. Generally, we grant petitions such as this one only in the following 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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). circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED (1) to supplement the administrative judge’s analysis to clarify that the appellant’s disclosure of information to the Office of Special Counsel (OSC) and the agency’s Office of the Inspector General (OIG) constituted protected activity under 5 U.S.C. § 2302(b)(9), (2) to clarify the legal standard applicable to the appellant’s claim that the agency placed her under “increased scrutiny,” (3) to supplement the administrative judge’s analysis to find that, although both of the appellant’s proposed suspensions constituted personnel actions, the appellant exhausted only one of her two proposed suspensions with OSC, and (4) to supplement the administrative judge’s analysis of the contributing factor criterion, we AFFIRM the initial decision, still finding that the appellant is not entitled to corrective action. BACKGROUND On December 30, 2019, the appellant, a GS-9 Diagnostic Radiologic Technologist, filed an appeal with the Board alleging that the agency had engaged in whistleblower retaliation. Initial Appeal File (IAF), Tab 1 at 5, 13, Tab 8 at 6, 138. Specifically, she alleged that the agency had targeted her, bullied her, and2 proposed her 5-day suspension in retaliation for a series of protected disclosures that she had made regarding patient care and medical recordkeeping. IAF, Tab 1 at 14. The appellant requested a hearing on the matter. Id. at 2. Shortly after filing her appeal, the appellant submitted to the administrative judge a November 14, 2019 close-out letter from OSC. IAF, Tab 2 at 3-4. In this letter, OSC explained that it was closing its investigation into the appellant’s allegations that, in “retaliation for making disclosures about discrimination and harassment in the workplace, as well as about patient care concerns regarding the number of open radiology consults and possible records-tampering,” the agency had subjected her to a hostile work environment, placed her on a detail, denied her Personal Identify Verification card access, issued her a proposed 5 -day suspension, and violated her Weingarten rights.2 Id. at 3. The administrative judge issued a jurisdictional order wherein he explained the circumstances under which the Board has jurisdiction to adjudicate IRA appeals, and he ordered the appellant to identify her claims and to file specific evidence and argument regarding jurisdiction. IAF, Tab 4 at 1-8. The administrative judge thereafter concluded that the alleged protected disclosures/activities at issue in this matter, to the exclusion of all others, were whether the appellant had disclosed to either the agency’s OIG or to OSC that agency management had “hid” a list of patients awaiting radiologic treatment so as to artificially improve their performance metrics. IAF, Tab 20 at 1, 3. The administrative judge identified the cognizable personnel actions at issue, to the exclusion of all others, as (1) the agency having placed the appellant under “increased scrutiny” and (2) the agency having proposed to suspend the appellant on two separate occasions. Id. at 1, 3-4. The administrative judge provided both 2 In National Labor Relations Board v. J. Weingarten Inc. , 420 U.S. 251 (1975), the U.S. Supreme Court held that, under the National Labor Relations Act, an employee has a right to union representation during an investigatory interview when the employee reasonably believes that discipline may result.3 parties with 7 days to object to his characterization of the issues; however, neither party objected. Id. at 1. Following a hearing conducted via Zoom for Government, the administrative judge issued an initial decision finding that, although the appellant had established Board jurisdiction over the matter, she was not entitled to any corrective action. IAF, Tab 27, Initial Decision (ID) at 1, 6, 12. In so finding, the administrative judge first concluded that the appellant had exhausted with OSC her claim that management had hidden a list of veteran patients awaiting treatment on a computer drive so as to artificially improve performance metrics. ID at 5. He next found that the appellant had failed to show that the agency’s “increased scrutiny” of her constituted a cognizable personnel action under 5 U.S.C. § 2302(a). ID at 6. He thereafter considered whether the appellant had 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) vis-à-vis her interactions with OIG and OSC; however, he declined to make a finding on the issue because he reasoned that, even assuming that she had, she failed to show that any such disclosure or activity could have contributed to the remaining alleged personnel actions, i.e., her two proposed suspensions. ID at 7-12. The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has not filed a response. In her petition, the appellant argues that the administrative judge erred in finding that she failed to satisfy the contributing factor criterion insofar as her disclosure to OIG contributed to her proposed 5-day suspension. Id. at 4-8. DISCUSSION OF ARGUMENTS ON REVIEW Under the Whistleblower Protection Enhancement Act of 2012 (WPEA), an appellant may establish a prima facie case of retaliation for whistleblowing disclosures and/or protected activity by proving by preponderant evidence3 that 3 Preponderant evidence is the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested4 (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 whistleblowing disclosure or protected activity was a contributing factor in the agency’s decision to take a personnel action against her. 5 U.S.C. § 1221(e)(1); Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶ 6 (2015). Under 5 U.S.C. § 1214(a)(3), an employee is required to seek corrective action from OSC before seeking corrective action from the Board. See Ward v. Merit Systems Protection Board , 981 F.2d 521, 526 (Fed. Cir. 1992). We supplement the initial decision to clarify that the appellant’s contact with OIG and OSC constituted protected activity under 5 U.S.C. § 2302(b)(9) and that the appellant exhausted this activity with OSC. As set forth above, the administrative judge here reasoned that the appellant’s alleged disclosure of information regarding a hidden patient list to OIG and/or OSC could potentially constitute a protected disclosure under 5 U.S.C. § 2302(b)(8) and/or protected activity under 5 U.S.C. § 2302(b)(9); however, he did not make a finding on the issue because he concluded that, given the appellant’s failure to satisfy the contributing factor criterion, such a finding was not material to the outcome of the appeal. ID at 7. As discussed herein, we agree with the administrative judge’s conclusion that the appellant failed to satisfy the contributing factor criterion; thus, we discern no material error with this approach. However, we supplement the initial decision to clarify that the uncontroverted evidence in the record shows that the appellant engaged in protected activity under 5 U.S.C. § 2302(b)(9). Under the broadly worded provision of 5 U.S.C. § 2302(b)(9)(C), disclosures of information to an agency’s OIG or to OSC are protected regardless of their content, as long as such disclosures are made “in accordance with applicable provisions of law.” Fisher v. Department of the Interior , 2023 MSPB 11, ¶ 8. Here, it is undisputed that the appellant made an anonymous complaint to fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).5 the agency’s OIG in the spring/summer of 2019.4 IAF, Tab 7 at 20, Tab 16 at 63- 65. It is also undisputed that the appellant filed a complaint with OSC in July 2019.5 IAF, Tab 7 at 7-18, 20. We therefore supplement the initial decision to find that the appellant’s OIG and OSC complaints both meet the broad standard set forth in 5 U.S.C. § 2302(b)(9)(C) and, therefore, constitute protected activity. We also supplement the initial decision to explicitly find that the appellant properly exhausted this activity with OSC prior to filing her Board appeal. Indeed, the record contains the appellant’s OSC complaint, OSC’s preliminary determination letter, and OSC’s close-out letter, all of which evince that she raised her OIG complaint with OSC. IAF, Tab 2 at 3, Tab 7 at 12, 20; see generally Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365, ¶ 12 (2013) (explaining that an appellant can demonstrate exhaustion by providing to the Board, among other things, her OSC complaint, any amendments thereto, OSC correspondence discussing the claims, and her responses to the OSC correspondence). The record also evinces that the appellant exhausted her OSC complaint with OSC. In particular, OSC’s preliminary determination letter indicates that the appellant amended her OSC complaint to allege that she had been retaliated against for having filed the same. IAF, Tab 7 at 20. Accordingly, we supplement the initial decision to clarify that the appellant showed by preponderant evidence that she engaged in protected activity vis-à-vis her contact 4 Although the appellant informed OSC that she had contacted OIG on May 7, 2019, she testified at the hearing that the contact had taken place in July 2019. IAF, Tab 7 at 12, 18, 20; ID at 3. This discrepancy, however, is not material to the outcome of this appeal. 5 The initial decision referenced only the OSC complaint underlying this appeal, i.e., OSC File No. MA-19-4252; however, the record indicates that the appellant filed a second July 2019 complaint with OSC’s Disclosure Unit. IAF, Tab 7 at 19 n.1, 20. This oversight is not material to the outcome of this appeal. Indeed, as discussed herein, we discern no basis to disturb the administrative judge’s conclusion that the appellant failed to show that any salient management officials were aware of her contact with OSC. ID at 8; see Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (explaining that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision). 6 with OIG and OSC and that she properly exhausted this activity with OSC prior to filing her Board appeal. We modify the initial decision to clarify the legal standard applicable to the appellant’s claim that the agency placed her under “increased scrutiny.” The definition of “personnel action” includes “any . . . significant change in duties, responsibilities, or working conditions.” 5 U.S.C. § 2302(a)(2)(A)(xii). Here, in his initial decision, the administrative judge considered whether the appellant’s claim of “increased scrutiny” constituted such a “significant change,” but he concluded that it did not. ID at 6. Subsequent to the initial decision, the Board clarified the legal standard applicable to claims of a “significant change in duties, responsibilities, or working conditions.” In particular, the Board found that, although “significant change” should be interpreted broadly to include harassment and discrimination that could have a chilling effect on whistleblowing or otherwise undermine the merit system, only agency actions that, individually or collectively, have practical and significant consequence for an appellant constitute a personnel action covered by section 2302(a)(2)(A)(xii). Skarada v. Department of Veterans Affairs , 2022 MSPB 17, ¶¶ 15-16. Thus, the agency actions must have significant effects on the overall nature and quality of the appellant’s working conditions, duties, or responsibilities. Id. Here, because the administrative judge found that the appellant had failed to provide meaningful evidence that agency management had, as alleged, increased its scrutiny of her, ID at 6, and the appellant does not meaningfully challenge this finding on review,6 we find that the appellant’s claim necessarily fails under the legal framework set forth in Skarada. 6 The appellant generally references the agency’s “enhanced scrutiny” of her; however, she neither specifically challenges any of the administrative judge’s conclusions related thereto nor references any evidence in the record that would undermine the same. PFR File, Tab 1 at 7; see Tines v. Department of the Air Force , 56 M.S.P.R. 90, 92 (1992) (explaining that a petition for review must contain sufficient specificity to enable the Board to ascertain whether there is a serious evidentiary challenge and concluding that the appellant’s petition contained neither evidence nor argument demonstrating error by the administrative judge).7 We supplement the initial decision to find that, although both of the appellant’s proposed suspensions constitute cognizable personnel actions, the appellant exhausted only one of her two proposed suspensions with OSC. The definition of “personnel action” for purposes of the WPEA also includes “an action under chapter 75 of this title or other disciplinary or corrective action.” 5 U.S.C. § 2302(a)(2)(A)(iii). A proposed suspension therefore constitutes a cognizable personnel action. See Fulton v. Department of the Army, 95 M.S.P.R. 79, ¶ 8 (2003) (explaining that a threat or proposal to take an action enumerated under 5 U.S.C. § 2302(a) is covered). The administrative judge did not make an explicit finding as to whether either of the appellant’s two proposed suspensions were cognizable personnel actions under the WPEA;7 accordingly, we supplement his analysis. The record indicates that the agency twice proposed to suspend the appellant. First, on September 17, 2019, it proposed her 5-day suspension based on the following charges: (1) a privacy violation; (2) unauthorized access to a confidential shred bin; and (3) failure to comply with her supervisor’s instructions. IAF, Tab 8 at 31-33. Thereafter, on January 10, 2020, the agency proposed to suspend her for 14 days based on the charge of careless workmanship. IAF, Tab 7 at 45-47. Accordingly, we supplement the initial decision to find that both the appellant’s proposed 5-day suspension and her proposed 14-day suspension constitute personnel actions under 5 U.S.C. § 2302(a)(2)(A)(iii). We also find that the appellant exhausted her proposed 5-day suspension with OSC; indeed, OSC’s close-out letter specifically referenced this proposed action. IAF, Tab 2 at 3; see Mudd, 120 M.S.P.R. 365, ¶ 12. However, insofar as the agency did not propose the appellant’s 14 -day suspension until January 10, 2020, after OSC had already issued its November 14, 2019 close-out letter, the appellant could not have exhausted the same with OSC. 7 Nevertheless, he considered whether the appellant’s ostensible protected disclosures/activity could have contributed to either of her proposed suspensions. ID at 10-11.8 IAF, Tab 2 at 3-4, Tab 7 at 45-47. Accordingly, the only proposed suspension at issue for purposes of this appeal is the appellant’s September 17, 2019 proposed 5-day suspension. IAF, Tab 8 at 31-33; see Briley v. National Archives & Records Administration , 236 F.3d 1373, 1377 (Fed. Cir. 2001) (“The Board’s jurisdiction is limited to issues raised before the OSC.”). Indeed, the proposed 5-day suspension is the only cognizable personnel action at issue in this appeal. The appellant does not provide a basis to disturb the administrative judge’s conclusion that she failed to satisfy the contributing factor criterion; however, we supplement the administrative judge’s analysis of the criterion. The appellant contends that the administrative judge erred in finding that she failed to satisfy the contributing factor criterion vis-à-vis her OIG complaint.8 PFR File, Tab 1 at 5. To this end, she avers that, although her OIG complaint was anonymous, agency personnel could have figured out that she was the source of the complaint because she had previously raised concerns with agency management that were similar to those raised in her OIG complaint. Id. at 5, 7. She also asserts that the agency proposed her 5-day suspension shortly after her contact with OIG, suggesting that the latter likely precipitated the former. Id. at 7. An appellant’s protected activity is a contributing factor if it in any way affects an agency’s decision to take, or fail to take, a personnel action. See Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 14 (2012). One way to satisfy the contributing factor criterion is the knowledge/timing test. Wadhwa v. 8 The thrust of the appellant’s petition for review is that the agency retaliated against her because she filed an anonymous OIG complaint; however, we acknowledge that the appellant vaguely states that “[t]he [a]gency’s witnesses did testify that they were aware of the nature of the complaint as it relates to doctoring the clinic availability times.” PFR File, Tab 1 at 7. To the extent this statement references the appellant’s OSC complaint in lieu of her OIG complaint, it does not provide a basis to disturb the administrative judge’s conclusion that the appellant “presented no evidence that any salient management official had any awareness of her OSC complaint.” ID at 8; see Riggsbee v. Office of Personnel Management , 111 M.S.P.R. 129, ¶ 11 (2009) (explaining that an appellant’s mere disagreement with the administrative judge’s explained factual findings and legal conclusions therefrom does not provide a basis to disturb the initial decision). 9 Department of Veterans Affairs , 110 M.S.P.R. 615, ¶ 12, aff’d, 353 F. App’x 435 (Fed. Cir. 2009). Under this test, an appellant can prove the contributing factor element through evidence showing that the official taking the personnel action knew of her protected activity and that the personnel action occurred within a period of time such that a reasonable person could conclude that the activity was a contributing factor in the personnel action. Id. Generally, the Board has held that, if an administrative judge determines that an appellant has failed to satisfy the knowledge/timing test, he shall consider other evidence, such as evidence pertaining to the strength or weakness of the agency’s reasons for taking the personnel action, whether the whistleblowing was personally directed at the proposing or deciding officials, and whether these individuals had a desire or motive to retaliate against the appellant. Dorney, 117 M.S.P.R. 480, ¶ 15. Here, the administrative judge found, based on credibility determinations, that none of the agency management officials involved in the appellant’s proposed suspensions had any actual or imputed knowledge that the appellant was the source of the anonymous OIG complaint. ID at 8. In particular, he credited the testimony of one of the salient agency management officials, Dr. C., who explained that she would have had no reason to associate any of the issues raised in the OIG complaint with the appellant “because the appellant was never a part of management’s discussion about these issues and because the appellant never addressed these issues with her.” ID at 8-9; IAF, Tab 16 at 63-65. By contrast, the administrative judge found the appellant’s testimony regarding her purported disclosures to management “fragmented and contrived.”9 ID at 9. We discern no 9 The appellant’s OIG complaint pertained to, among other things, agency personnel allegedly “changing patient access to grids causing delays in getting patients scheduled for appointments.” IAF, Tab 16 at 63 (grammar as in original). Although related, this allegation differs slightly from the appellant’s claim before the Board, i.e., that agency personnel purposefully hid a list of patients awaiting appointments on a computer drive. Accordingly, the administrative judge reasoned that, more likely than not, “the appellant learned of [the computer d]rive issue after [she had made] her anonymous [OIG complaint]” and thereafter “shifted” her claims “to bolster her IRA appeal.” ID at 9. In any event, the appellant’s arguments on review do not provide a basis to disturb10 basis to disturb these findings. See Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002) (holding that the Board must give deference to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing). In addition, we find that the administrative judge appropriately considered additional evidence, including the agency’s reasons for proposing to suspend the appellant, ID at 10-11. See Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 14 (2012). Accordingly, we affirm as modified the administrative judge’s conclusion that the appellant failed to satisfy the contributing factor criterion. Because the appellant failed to show by preponderant evidence that her contact with OIG and/or OSC contributed to her proposed 5-day suspension, we agree with the administrative judge’s conclusion that she failed to establish a prima facie case of retaliation for whistleblowing. See Webb, 122 M.S.P.R. 248, ¶ 6. Accordingly, we affirm the initial decision as modified. NOTICE OF APPEAL RIGHTS10 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 the administrative judge’s conclusion that the appellant failed to show that she had raised any concerns that would have associated her with the anonymous OIG complaint. 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); Broughton v. Department of Health & Human Services , 33 M.S.P.R. 357, 359 (1987) (same). 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.11 provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at12 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case, and 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,13 and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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.11 The court of appeals must receive your petition for 11 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,14 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 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: _____________________ _________ Gina K. Grippando Clerk of the Board Washington, D.C.16	Tavernini_KellyAT-1221-20-0208-W-1_Final_Order.pdf	2024-09-20	KELLY TAVERNINI v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-20-0208-W-1, September 20, 2024	AT-1221-20-0208-W-1	NP
485	https://www.mspb.gov/decisions/nonprecedential/Roten_Roger_A_CH-0752-20-0087-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ROGER ALLEN ROTEN, Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER CH-0752-20-0087-I-1 DATE: September 20, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Rebecca L. Fisher , Esquire, San Antonio, Texas, for the appellant. Hannah Brothers , Chicago, Illinois, for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman Henry J. Kerner , Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which sustained his demotion based on the charge of unacceptable conduct. On petition for review, the appellant reiterates his arguments from below concerning his challenges to two of the four specifications to the charge. Petition for Review File, Tab 1. Generally, we grant petitions such as this one only in the following 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b). 2 The appellant raised an affirmative defense of race discrimination. Initial Appeal File (IAF), Tab 27 at 6. In the initial decision, the administrative judge applied the framework as set forth in Savage v. Department of the Army , 122 M.S.P.R. 612, ¶ 51 (2015), and he concluded that the appellant failed to prove that race was a motivating factor in the agency action. IAF, Tab 48, Initial Decision at 21-22. Following the issuance of the initial decision, the Board issued Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 20-25, 30, which overruled parts of Savage and clarified the proper analytical framework to be applied to affirmative defenses of Title VII discrimination and retaliation. Specifically, the Board explained in Pridgen that for status-based discrimination claims, in order to obtain full relief, the appellant must show that discrimination was a “but-for” cause of the personnel action. Id., ¶¶ 21-22. The Board also clarified the expansive scope of potentially relevant evidence. Id., ¶¶ 23-25. Based on our review of the record, we conclude that the outcome of this appeal under the standard set forth in Pridgen would be the same as that arrived upon by the administrative judge.2 NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case, and 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 any4 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s5 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of 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 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Roten_Roger_A_CH-0752-20-0087-I-1_Final_Order.pdf	2024-09-20	ROGER ALLEN ROTEN v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-0752-20-0087-I-1, September 20, 2024	CH-0752-20-0087-I-1	NP
486	https://www.mspb.gov/decisions/nonprecedential/Black_ArthurSF-752S-21-0241-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ARTHUR BLACK, Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER SF-752S-21-0241-I-1 DATE: September 19, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Bruce Bock , South San Francisco, California, for the appellant. Mike Del Real , Clovis, California, for the appellant. James Gursky , Esquire, Potomac, Maryland, for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman Henry J. Kerner , Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his 14-day suspension appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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). 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). On petition for review, the appellant argues the merits of his suspension, stating that he “dispute[s] the company decision and can prove fraudulent and erroneous information in their findings.” Petition for Review (PFR) File, Tab 1 at 3. He maintains that “Abbot versus U.S Postal Service citing Yanell versus Dept of Transportation states an employee who an agency wishes to suspend for 14 days or less is entitled to due process.” Id. Therefore, he argues that his “entitlement to due process” grants the Board jurisdiction over his appeal. Id. The appellant’s arguments present no basis for overturning the administrative judge’s finding that he failed to raise nonfrivolous allegations that the Board has jurisdiction over his appeal. Initial Appeal File (IAF), Tab 5, Initial Decision (ID) at 3. The appellant does not challenge the administrative judge’s finding that, although he checked the box on the initial appeal form for “Suspensions for more than 14 days,” the final decision letter that he submitted into the record concerned a 14-day no time off suspension. PFR File, Tab 1 at 3; ID at 3; IAF, Tab 1 at 4, 10. Suspensions of 14 days or less are not within the appellate jurisdiction of the Board. Lefavor v. Department of the Navy , 115 M.S.P.R. 120, ¶ 5 (2010); see 5 U.S.C. § 7512; 5 C.F.R. § 1201.3(a)(1).2 Contrary to the appellant’s assertion that the Board’s remand order in Abbott v. U.S. Postal Service , 121 M.S.P.R. 294, ¶ 6 (2014), stands for the proposition that employees are entitled to due process regarding proposed suspensions “for 14 days or less,” that appeal concerned the issues of enforced leave and constructive suspensions. PFR File, Tab 1 at 3. In Abbott, the Board held that “an agency’s placement of an employee on enforced leave for more than 14 days constitutes an appealable suspension within the Board’s jurisdiction.” Abbott, 121 M.S.P.R. 294, ¶ 10. Therefore, the case law the appellant cites to support his argument that the Board has jurisdiction over his 14-day suspension does not in fact address suspensions of this length. PFR File, Tab 1 at 3. Because the appellant has not presented nonfrivolous allegations of Board jurisdiction, he is not entitled to a jurisdictional hearing. See Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994). 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. 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 5 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Black_ArthurSF-752S-21-0241-I-1_Final_Order.pdf	2024-09-19	ARTHUR BLACK v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-752S-21-0241-I-1, September 19, 2024	SF-752S-21-0241-I-1	NP
487	https://www.mspb.gov/decisions/nonprecedential/Perez_Carlos_E_NY-844E-20-0224-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CARLOS E. PEREZ, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER NY-844E-20-0224-I-1 DATE: September 19, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Keith L. Reid, Esquire, Virginia Beach, Virginia, for the appellant. Jo Bell , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The agency, the Office of Personnel Management (OPM), has filed a petition for review of the initial decision, which reversed its denial of the appellant’s application for disability retirement and awarded him benefits. 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). the reasons discussed below, we GRANT OPM’s petition for review and REVERSE the initial decision. OPM’s reconsideration decision is AFFIRMED. BACKGROUND The appellant served as a Human Resources Generalist, EAS-21, with the U.S. Postal Service. On March 1, 2019, he initiated his immediate retirement (disability) under the Federal Employees’ Retirement System (FERS). Initial Appeal File (IAF), Tab 9 at 67. On May 24, 2019, his employing agency removed him for misconduct, but based on a settlement agreement, that action was expunged from his record and he was allowed to pursue voluntary retirement, which he did on July 10, 2019. Id. at 85. The effective date of his retirement was August 31, 2019. Id. at 89. However, on January 28, 2020, he again pursued disability retirement citing numerous conditions. Id. at 95. OPM made an initial determination to deny the appellant’s application on the basis that he did not meet all the criteria for disability retirement. Id. at 17. He submitted additional documentation, but upon its review, OPM did not change its determination. Id. at 10. Finally, on August 13, 2020, OPM issued its reconsideration decision, again determining that its initial denial was correct and denying the appellant’s application for disability retirement. Id. at 4. On appeal, the appellant stated that he is a “100% service connected veteran” and is 100% disabled, and that his work at the U.S. Postal Service caused or contributed to his disability. IAF, Tab 1 at 7. He requested a hearing. Id. at 2. The parties made additional submissions, IAF, Tabs 9-12, after which the administrative judge convened the requested hearing.2 IAF, Tab 15. Following the receipt of two additional documents from the appellant, IAF, Tabs 16-17, the record was closed, and the administrative judge issued an initial decision. IAF, Tab 18, Initial Decision (ID). She first found it undisputed that the appellant completed 18 months of creditable service in a position covered 2 OPM did not participate in the hearing, and the appellant was the only witness to provide testimony. IAF, Tab 15.2 under FERS. The administrative judge next found that, according to the appellant, he became disabled from the cumulative effects of his multiple health conditions in May 2018, that, according to his physician, the appellant became disabled in April 2018, and that there is no contrary evidence in the record. The administrative judge further found that the appellant’s claims and medical documentation are consistent that he suffers severe pain when he walks, stands, climbs stairs, and reads, demonstrating that his conditions caused a service deficiency, and that he therefore established that he became disabled while employed in a FERS position. ID at 3. The administrative judge then found that the appellant has been treated for his claimed conditions from 2018 to the present, they lasted more than 1 year, and the Postal Service attested that he cannot be accommodated. Concluding that the appellant established his entitlement to disability retirement, the administrative judge reversed OPM’s reconsideration decision. ID at 1, 4. OPM has filed a petition for review, Petition for Review (PFR) File, Tab 1, to which the appellant has not responded. ANALYSIS In an appeal from an OPM decision on a voluntary disability retirement application, the appellant bears the burden of proof by preponderant evidence. Thorne v. Office of Personnel Managemen t, 105 M.S.P.R. 171, ¶ 5 (2007); 5 C.F.R. § 1201.56(a)(2). To be eligible for a disability retirement annuity under FERS, an employee must show the following: (1) He completed at least 18 months of creditable civilian service; (2) while employed in a position subject to FERS, he became disabled because of a medical condition, resulting in a deficiency in performance, conduct, or attendance, or, if there is no such deficiency, the disabling medical condition is incompatible with either useful and efficient service or retention in the position; (3) the condition is expected to continue for at least 1 year from the date that the application for disability3 retirement benefits was filed; (4) accommodation of the disabling medical condition in the position held must be unreasonable; and (5) he did not decline a reasonable offer of reassignment to a vacant position. Thorne, 105 M.S.P.R. 171, ¶ 5; see 5 U.S.C. § 8451(a); 5 C.F.R. § 844.103(a). On review, OPM acknowledges that the appellant meets criteria (1), (4), and (5), as set forth above, PFR File, Tab 1 at 6, but challenges the administrative judge’s findings regarding criteria (2) and (3). Id. at 6-8. Under criterion (2), an appellant may show that he is disabled by showing that the medical condition caused a deficiency in performance, attendance, or conduct, as evidenced by the effect of his medical condition on his ability to perform specific work requirements, or that his medical condition prevented him from being regular in attendance, or caused him to act inappropriately. Rucker v. Office of Personnel Management, 117 M.S.P.R. 669, ¶ 10 (2012); Henderson v. Office of Personnel Management, 117 M.S.P.R. 313, ¶ 17 (2012). Alternatively, the employee can show that his medical condition is incompatible with useful and efficient service or retention in the position by demonstrating that his medical condition is inconsistent with working in general, in a particular line of work, or in a particular type of work setting. Rucker, 117 M.S.P.R. 669, ¶ 10; Henderson, 117 M.S.P.R. 313, ¶ 17. OPM challenges the administrative judge’s finding that, based on the appellant’s testimony that he suffers pain when he walks, stands, climbs stairs, and reads, he showed a service deficiency. Rather, OPM argues that, while the appellant’s supervisor did note a service deficiency, it was based on the appellant’s removal, not his medical condition. PFR File, Tab 1 at 7. We agree. In the statement the appellant’s supervisor completed in connection with the appellant’s disability retirement application, the supervisor stated that the appellant’s performance was less than fully satisfactory in his critical elements, but, in support of that statement, he referred only to the “attached [notice of proposed removal] and the [letter of decision].” IAF, Tab 9 at 79. Similarly,4 when asked to identify any critical elements in which the appellant was not performing satisfactorily, the supervisor again referred to the proposal and decision notices. Id. at 80. The appellant testified that, because of pain in his back, legs, and ankles, he has difficulty showing job applicants around the building, looking at files while conducting research, dealing with walk-ins, and participating in seminars. Hearing Record (HR) (testimony of the appellant). While there is evidence supporting the appellant’s claim that he suffers from numerous conditions, IAF, Tabs 10-11, the evidence does not support his assertion that they adversely affect his ability to perform his duties. In addition, the appellant’s position description describes a sedentary job that includes no specific physical requirements.3 IAF, Tab 9 at 61-62. When this evidence is viewed along with the supervisor’s statement that identifies no performance deficiencies related to the appellant’s medical condition, the appellant’s testimony that his medical condition resulted in a performance deficiency is of minimal evidentiary value. Newkirk v. Office of Personnel Management , 101 M.S.P.R. 667, ¶ 16 (2006) (finding that an employee’s subjective evidence of disability is entitled to consideration and weight in a disability retirement case when it is supported by competent medical evidence); see also Biscaha v. Office of Personnel Management , 51 M.S.P.R. 304, 309 (1991). In his statement, the supervisor answered similarly that the appellant’s conduct was unsatisfactory, but again, he referenced the appellant’s removal and retirement, not his medical condition. IAF, Tab 9 at 80. The record is otherwise devoid of evidence regarding the appellant’s conduct. Therefore, the appellant has failed to show that his medical condition resulted in a conduct deficiency. 3 Included in the record is a document that appears to refer to an injury the appellant suffered on April 13, 2005, described as “sprain of back - lumbar region.” IAF, Tab 17 at 5. Although suggested accommodations were “alternate positions (sitting, standing, walking) and no flexion/twisting (lifting limited to 10 lbs.),” there is no further evidence relating this injury to the appellant’s current condition, almost 15 years later. Therefore, we attach limited significance to this document.5 The appellant testified that he missed a considerable amount of work in May 2018 because of his depression, HR (the appellant’s testimony), and his supervisor acknowledged that the appellant used 1,424 hours of sick leave beginning at that time. IAF, Tab 9 at 80. However, no medical evidence supports the appellant’s claim regarding the basis for his absence. Moreover, absence from work alone does not establish entitlement to disability retirement. Harris v. Office of Personnel Management , 110 M.S.P.R. 249, ¶ 17 (2008). We therefore find that the administrative judge erred in finding that the appellant showed that his claimed disability resulted in a service deficiency in performance, conduct, or attendance. However, as noted, an appellant may also establish entitlement to disability retirement if he establishes that his medical condition is incompatible with useful and efficient service or retention in his position. Christopherson v. Office of Personnel Management , 119 M.S.P.R. 635, ¶ 6 (2013). In this instance, the appellant must show that he cannot work at all in any job, in a particular line of work, or in a particular type of work setting. Id.; Henderson, 117 M.S.P.R. 313, ¶ 19. The administrative judge did not undertake such an analysis, but, because the record is complete, we do so here. It is clear that the appellant has long been treated for the medical conditions described in his application for disability retirement, among others. IAF, Tab 9 at 75; Tabs 10-11. He has undergone repeated testing, including MRIs, x-rays, and blood work, as well as various studies, and he has been prescribed a wide variety of medications. IAF, Tab 11 at 46-68. His treating physician since 2013 stated that the appellant has been disabled since April 19, 2018. IAF, Tab 12 at 4. The physician also listed the appellant’s 18 medications, and provided a somewhat more detailed diagnosis of his 25 medical conditions, id. at 4-5, concluding that “[b]ecause of above conditions patient has moderate to severe limitations. He cannot push, pull, lift over 5 pounds carry, bend, squat or kneel. He cannot work.” Id. at 5. The physician’s conclusion, however, is not6 supported by evidence showing that the appellant’s medical conditions are debilitating, that is, that they are inconsistent with working in general, in a particular line of work, or in a particular type of work setting. Rucker, 117 M.S.P.R. 669, ¶ 10. We have considered the appellant’s testimony that his medical conditions preclude him from performing his duties, HT (the appellant’s testimony), but, as noted, there is a lack of competent medical evidence supporting his claim that his conditions are inconsistent with working. The record contains numerous decisions by the Department of Veterans Affairs (DVA) over the years finding that the appellant has one or more service-connected disabilities with increasing percentages of combined service-connected disability. IAF, Tab 11 at 7-45. The Board will consider an award of benefits by DVA, but it is not dispositive. Sachs v. Office of Personnel Management, 99 M.S.P.R. 521, ¶ 11 (2005). That is so because DVA ratings are based on different criteria than FERS disability retirement claims. Hunt v. Office of Personnel Management , 105 M.S.P.R. 264, ¶ 37 (2007). In a decision dated May 31, 2019, DVA stated that the appellant had one or more service-connected disabilities with a combined service-connected evaluation of 100%.4 IAF, Tab 11 at 7-16. However, neither this decision nor any of the previous decisions make any statement that the appellant’s symptoms cause any occupational impairment or otherwise address his ability to work. We therefore find that DVA’s rating of disability for the appellant is not dispositive. We conclude, therefore, that the appellant has failed to show that his medical conditions caused a deficiency in performance, conduct, or attendance, or are incompatible with useful and efficient service or retention in his position, and 4 We have not considered a DVA decision dated February 8, 2021, stating that the appellant is totally and permanently disabled because it post-dates by more than 1 year the appellant’s retirement from the U.S. Postal Service. IAF, Tab 17 at 8.7 that he has therefore failed to establish entitlement to a disability retirement under FERS.5 NOTICE OF APPEAL RIGHTS6 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. 5 Based on our finding that the appellant has failed to establish that his medical conditions render him disabled under FERS, as set forth above, we need not address OPM’s remaining argument on review. We note, however, that the administrative judge erred in finding that the appellant established that his conditions lasted more than 1 year because he has been treated from 2018 to present. ID at 4. To meet criterion (3), the appellant must show that his disabling condition is expected to continue for at least 1 year from the date the application for disability retirement was filed. Thorne, 105 M.S.P.R. 171, ¶ 5. Here, the appellant first initiated his application for disability retirement on March 1, 2019. IAF, Tab 9 at 95. Under the circumstances, however, and in view of our ultimate disposition in this case, the administrative judge’s error did not prejudice OPM’s substantive rights. Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984). 6 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.8 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 you9 receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: 10 Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.7 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 7 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 11 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.12	Perez_Carlos_E_NY-844E-20-0224-I-1_Final_Order.pdf	2024-09-19	CARLOS E. PEREZ v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. NY-844E-20-0224-I-1, September 19, 2024	NY-844E-20-0224-I-1	NP
488	https://www.mspb.gov/decisions/nonprecedential/Montez_Matthew_D_DE-844E-19-0432-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MATTHEW D. MONTEZ, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER DE-844E-19-0432-I-1 DATE: September 19, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Steven E. Brown , Esquire, Westlake Village, California, for the appellant. Albert Pete Alston, Jr. , Washington, D.C., for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman Henry J. Kerner , Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which affirmed the final decision of the Office of Personnel Management (OPM) that denied his application for disability retirement benefits under the Federal Employees’ Retirement System (FERS). For the reasons set forth below, we 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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). GRANT the petition for review and REVERSE the initial decision. OPM’s final decision is NOT SUSTAINED. BACKGROUND The appellant was employed as a GS-7 Production Controller with the 531st Commodities Maintenance Squadron with the Department of the Air Force. Initial Appeal File (IAF), Tab 9 at 20. He was responsible for ordering parts to support various weapons systems throughout the agency, maintaining spreadsheets to track those orders, providing the shop with the status of part orders, and routing orders to the shop when they were received. IAF, Tab 9 at 101-02, Tab 17, Hearing Recording (HR) (testimony of the appellant’s supervisor). On September 19, 2016, the appellant resigned from his position. IAF, Tab 9 at 20. Nearly one year later, on September 11, 2017, he submitted an application for disability retirement benefits under FERS based on major depressive disorder (MDD). Id. at 46-50, 52-53. In an initial decision, OPM denied the appellant’s application for disability retirement benefits. Id. at 35-39. After the appellant requested reconsideration, id. at 28-29, OPM issued an August 6, 2019 final decision sustaining its initial decision, id. at 21-24. OPM determined that the evidence failed to establish that his medical condition was disabling prior to his resignation from his position, that his medical condition was the cause of his service deficiencies, that his employing agency was unable to make reasonable accommodation for his medical condition, and that reasonable accommodation or reassignment was necessary for his medical condition. Id. at 22-23. Thus, OPM concluded that he failed to meet the criteria requisite for disability retirement under FERS. Id. The appellant appealed to the Board challenging OPM’s final decision. IAF, Tab 1. After holding a hearing, the administrative judge affirmed OPM’s decision. IAF, Tab 21, Initial Decision (ID). The administrative judge found that2 the appellant did not show that, while employed in a position subject to FERS, he was disabled because of MDD, resulting in a deficiency in performance, conduct, or attendance, or that his medical condition was incompatible with either useful and efficient service or retention in his position. ID at 12. Further, he found that the appellant did not show that accommodation of his disabling condition in the position held was unreasonable. Id. Therefore, he concluded that the appellant did not establish that he was entitled to disability retirement benefits under FERS. ID at 17. The appellant has filed a petition for review of the initial decision. Petition for Review (PFR) File, Tab 1. He asserts that the administrative judge failed to sufficiently credit the opinions of the appellant’s treating Department of Veterans Affairs (DVA) medical providers and “misinterpreted the medical evidence which established that the appellant was unable to perform the essential functions of his official position.” Id. at 6-8, 15. He also asserts that the administrative judge erred in finding that his inability to work was only “situational” and in requiring him to prove that he could not be reassigned or accommodated. Id. at 8-9, 11-15. Finally, he alleges that DVA and Social Security Administration (SSA) determinations show that he is entitled to disability retirement benefits.2 PFR File, Tab 1 at 10, Tab 4 at 9. The agency has responded in opposition, PFR File, Tab 3, to which the appellant has replied, PFR File, Tab 4. 2 The appellant asserts that the DVA determination, which stated that he was entitled to disability benefits based on a 70% rating for major depressive disorder, supports his claim for FERS benefits. PFR File, Tab 4 at 9; IAF, Tab 9 at 66-68. However, DVA disability ratings are based on different criteria than those applicable to assessing FERS disability retirement claims, and they are not binding on the Board in disability retirement matters. See Hunt v. Office of Personnel Management , 105 M.S.P.R. 264, ¶ 37 (2007). The SSA determination is relevant, but not dispositive, in a FERS disability retirement appeal when, as here, the conditions underlying both applications are the same. PFR File, Tab 1 at 10; IAF, Tab 9 at 62-65; see Confer v. Office of Personnel Management , 111 M.S.P.R. 419, ¶ 6 (2009). Here, the SSA determined that the appellant was not entitled to disability benefits. IAF, Tab 9 at 62. Based on the foregoing, we find that the DVA and SSA determinations do not provide a basis for disturbing the outcome in the instant appeal.3 DISCUSSION OF ARGUMENTS ON REVIEW In an appeal from an OPM decision denying a voluntary disability retirement application, the appellant bears the burden of proof by preponderant evidence. Christopherson v. Office of Personnel Management , 119 M.S.P.R. 635, ¶ 6 (2013); 5 C.F.R. § 1201.56(b)(2)(ii). To be eligible for disability retirement benefits under FERS, an individual must meet the following requirements: (1) he must have completed at least 18 months of creditable civilian service; (2) while employed in a position subject to FERS, he must have become disabled because of a medical condition resulting in a deficiency in performance, conduct, or attendance, or if there is no such deficiency, the disabling medical condition must be incompatible with either useful and efficient service or retention in the position; (3) the disabling medical condition must be expected to continue for at least 1 year from the date the disability retirement benefits application is filed; (4) accommodation of the disabling medical condition in the position held must be unreasonable; and (5) he must not have declined a reasonable offer of reassignment to a vacant position. Christopherson, 119 M.S.P.R. 635, ¶ 6; see 5 U.S.C. § 8451(a). For the following reasons, we find that the appellant has proven all of these criteria. The appellant completed at least 18 months of creditable civilian service. The administrative judge did not explicitly address the first element of the appellant’s case. However, the record shows that, at the time of his resignation, the appellant had FERS-creditable service well in excess of 18 months. IAF, Tab 9 at 85-90. This issue is undisputed. The appellant’s condition is incompatible with useful and efficient service or retention in his position. An appellant may meet the statutory requirement that he “be unable, because of disease or injury, to render useful and efficient service in the employee’s position” through the following: (1) showing that the medical condition caused a deficiency in performance, attendance, or conduct; or4 (2) showing that the medical condition is incompatible with useful and efficient service or retention in the position. Christopherson, 119 M.S.P.R. 635, ¶ 6. Under the first method, an employee can establish entitlement by showing that his medical condition affected his ability to perform specific work requirements, prevented him from being regular in attendance, or caused him to act inappropriately. Henderson v. Office of Personnel Management , 117 M.S.P.R. 313, ¶ 16 (2012). Alternatively, the employee can show that his medical condition is inconsistent with working in general, in a particular line of work, or in a particular type of work setting. Id. The ultimate question, based on all relevant evidence, is the following: do the employee’s medical impairments preclude him from rendering useful and efficient service in his position? Id., ¶ 20. This question must be answered in the affirmative if the totality of the evidence makes that conclusion more likely to be true than not true. Id. Regarding the first method for establishing an inability to render useful and efficient service, the administrative judge found that, although the medical records in this case established that the appellant suffered from depression to some degree while employed by the Air Force, the appellant did not show that his condition resulted in a deficiency in performance, conduct, or attendance. ID at 12. The appellant does not challenge this well-reasoned finding on review, and we discern no basis for disturbing it. Rather, the appellant challenges the administrative judge’s findings regarding the second method for establishing an inability to render useful and efficient service. Specifically, he asserts that the administrative judge failed to attribute proper weight to the medical evidence in support of his disability retirement application because it was based on his own description of his conditions or was dated after the end of his Federal employment. PFR File, Tab 1 at 6-8. To establish entitlement to disability retirement benefits, an appellant must have become disabled while employed in a position subject to FERS and not after his separation from service. Hardy v. Office of Personnel Management ,5 98 M.S.P.R. 323, ¶ 11 (2005). However, medical documentation prepared post-separation may be considered if that documentation addresses the appellant’s condition at the time of his separation. Reilly v. Office of Personnel Management, 571 F.3d 1372, 1380-82 (Fed. Cir. 2009). “Where proximity in time, lay testimony, or some other evidence provides the requisite link to the relevant period the subsequent medical evidence can be very probative of a prior disability.” Id. at 1382. Here, the relevant medical documentation was all prepared post-separation. In an August 23, 2017 letter, a psychologist, R.S., stated that the appellant had been treated for anxiety and depression at the Salt Lake City Veterans Affairs Medical Center since June 2013, and that, in September 2016, he reported that he resigned due to work-related stress. IAF, Tab 9 at 195. R.S. stated that, at the time of the appellant’s resignation in September 2016, he was being treated with psychotherapy. Id. In an August 31, 2017 letter, a nurse practitioner, J.L., stated that the appellant was transferred to her care in April 2017, and, after observing that he continued to experience anxiety and depression even after psychotherapy and medications, she opined that he “would benefit from life long mental health treatment” and is “not employable.” Id. at 194. In a January 4, 2019 evaluation,3 another psychologist, S.B., stated that, at the time the appellant resigned, “his depression and anxiety rendered him incapable of performing any of his work duties.” Id. at 120; HR (testimony of S.B.). We find that the administrative judge gave these medical opinions proper weight. The administrative judge found, and we agree, that J.L.’s letter was not persuasive because she described the appellant’s mental condition nearly a year after his resignation; she did not begin treating him until well after he resigned; and he had only been under her care for 4 months at the time she wrote it. ID at 13; IAF, Tab 9 at 194; see Anderson v. Office of Personnel Management , 3 While the evaluation was dated January 2019, the date of assessment was December 22, 2018. IAF, Tab 9 at 120.6 96 M.S.P.R. 299, ¶ 14 (2004) (finding that the probative value of the appellant’s medical evidence was diminished by the fact that her physicians had been treating her for a relatively short period of time and did not begin treating her until well after the time when she alleged her disability began), aff’d, 120 F. App’x 320 (Fed. Cir. 2005). Moreover, with the exception of S.B., the appellant’s medical providers did not explain how his condition affected his work requirements. IAF, Tab 9 at 120-21; see Alford v. Office of Personnel Management , 111 M.S.P.R. 536, ¶ 11 (2009) (stating that a physician’s conclusion that an employee is disabled is persuasive only if he explains how the medical condition affects the employee’s specific work requirements), aff’d, 361 F. App’x 131 (Fed. Cir. 2010). The administrative judge noted that medical evaluations relying exclusively on an appellant’s own description of his psychological symptoms are relevant evidence for purposes of determining disability retirement eligibility. ID at 14. However, the administrative judge questioned the reliability of the appellant’s self-reported symptoms because his medical records concerning his mental health prior to his resignation were sparse and, while they supported the existence of depression, they were not consistent with the severe nature of the depression expressed to S.B. ID at 15. Nonetheless, the administrative judge accorded some weight to S.B.’s evaluation, considered the appellant’s testimony that his depression interfered with his ability to perform the duties of his position, and concluded that the appellant’s subjective complaints of disability were supported by the competent medical evidence of record.4 ID at 15-16; HR (testimony of the appellant); see Christopherson , 119 M.S.P.R. 635, ¶ 13 (stating that an employee’s subjective evidence of disability is entitled to consideration and 4 The appellant argues that the administrative judge’s finding that his subjective complaints of disability were supported by the medical evidence contradicts his prior finding that his self-reported symptoms are not to be believed. PFR File, Tab 1 at 8, Tab 4 at 8-9. Contrary to the appellant’s allegations, the administrative judge carefully weighed the relevant evidence, and we do not discern inconsistencies in his findings.7 weight in a disability retirement case when it is supported by competent medical evidence). We discern no reason to disturb these findings. The administrative judge also found that the appellant did not show that his MDD was incompatible with either useful and efficient service or retention in his position based on the fact that his problems at the time he resigned were situational, that is, apparent only in his work environment, as a result of his perception of harassment. ID at 16. The appellant disputes this finding and asserts that the fact that his depression continued after he left his Federal job is evidence that it was not situational. PFR File, Tab 1 at 11. In support of his assertion, he cites the Board’s analysis in Doe v. Office of Personnel Management, 109 M.S.P.R. 86, ¶¶ 17-19 (2008), and argues that S.B.’s evaluation demonstrates that his depression affected him at work and outside of work. Id. at 11-14. The Board has repeatedly held that job-related stress that results in mental impairments that prevent an employee from performing the duties necessary in his job can warrant the granting of disability retirement. Kimble v. Office of Personnel Management , 102 M.S.P.R. 604, ¶ 14 (2006). The relevant and dispositive issue is whether the medical condition prevented the employee from rendering useful and efficient service in his position. Doe, 109 M.S.P.R. 86, ¶¶ 17-19. Here, the record reflects that the appellant’s work-related stress exacerbated his depression and anxiety, impeding his ability to render useful and efficient service in his position. ID at 16-17; IAF, Tab 9 at 120, 195. For example, S.B. opined that the appellant’s work stress worsened the appellant’s depression and anxiety and that, due to his medical condition, the appellant was “incapable of performing any of his work duties.” IAF, Tab 9 at 120-21. There is also evidence that the appellant’s symptoms were apparent outside of his work environment. Specifically, in his evaluation, S.B. discussed the appellant’s long-standing history of depression and anxiety prior to the appellant’s resignation. IAF, Tab 9 at 117-19; see Kimble, 102 M.S.P.R. 604,8 ¶ 13 (finding that the appellant was entitled to disability retirement benefits when, among other things, the medical evidence established that her depression and anxiety were long-standing and impacted areas of her life outside of her Federal employment). Moreover, in determining whether the appellant’s condition was confined to a single work environment, subsequent work history is relevant. Confer v. Office of Personnel Management , 111 M.S.P.R. 419, ¶ 16 (2009). The appellant testified that, from January to March 2017, he worked as a Materials Handler5 at a temporary employment service agency that contracted with a pharmaceutical company. HR (testimony of the appellant); IAF, Tab 14 at 58. He noted that, in that position, he suffered conflicts with people, which he attributed to his depression and anxiety. Id. He confirmed that he was terminated from that position and did not obtain any subsequent employment. Id. Therefore, notwithstanding the absence of any documented deficiency in performance, conduct, or attendance, we find that the appellant’s MDD was incompatible with useful and efficient service or retention in his position, and became so during the course of his employment. The appellant’s disabling condition continued for at least 1 year after his application for disability retirement. Because he found that the appellant did not suffer from a disabling condition, the administrative judge did not reach the issue of whether his disabling condition was expected to persist for more than 1 year after the date of his disability retirement application. As described above, much of the medical evidence in this appeal postdates the disability retirement application. In particular, nurse practitioner J.L. and clinical psychologist S.B. both opined, on August 31, 2017, and January 4, 2019, respectively, that the appellant’s MDD continued to render him essentially unemployable. IAF, Tab 9 at 115-21, 194. 5 As a Materials Handler, the appellant was responsible for “basic warehousing.” HR (testimony of the appellant). He handled the receipt, storage, distribution, and disposal of pharmaceutical products, as well as the inputting of that information into the computer systems. Id. 9 We therefore find that the appellant’s disabling condition persisted for more than 1 year after his September 11, 2017 disability retirement application, and that he has proven this element of his case. Accommodation of the appellant’s condition was not reasonable. Under FERS, an individual is not eligible for disability retirement benefits if there is a reasonable accommodation for the disabling condition in the position held. See Confer, 111 M.S.P.R. 419, ¶ 29. An accommodation is defined as “a reasonable adjustment made to an employee’s job or work environment that enables the employee to perform the duties of the position.” 5 C.F.R. § 844.102. An “accommodation may include modifying the worksite; adjusting the work schedule; restructuring the job; obtaining or modifying equipment or devices; providing interpreters, readers, or personal assistants; and retraining the employee.” Id. The administrative judge found that the appellant did not show that accommodation of his disabling medical condition in the position he held was unreasonable or that he could not be reassigned to another Production Controller position as a reasonable accommodation. ID at 12, 17. The appellant challenges this finding on review, asserting that it was error to require a FERS disability retirement applicant to prove that he could not be reassigned or accommodated. PFR File, Tab 1 at 9, 14. In support of his argument, the appellant cites Hilal v. Office of Personnel Management , MSPB Docket No. AT-844E-20-0070-I-1, Initial Decision (May 14, 2020).6 Id. at 14. He disagrees with OPM’s statement that he “failed to complete the accommodation process,” PFR File, Tab 3 at 16, and he maintains that the agency “effectively denied” him an accommodation because he was cleared for duty without medical restrictions, PFR File, Tab 4 at 5. 6 The Board is not bound by initial decisions, and they have no precedential effect. See Special Counsel v. Greiner , 117 M.S.P.R. 117, ¶ 11 n.5 (2011). 10 Here, as noted by the administrative judge, the record does not contain a Certification of Reassignment and Accommodation Efforts, Standard Form 3112D, from the Air Force. ID at 16. However, the record reflects that the appellant requested reassignment on September 12, 2016, and that the agency informed him on September 13, 2016, that he would need to be evaluated by Occupational Medical Services (OMS) for work restrictions so that a reasonable accommodation could be made. IAF, Tab 9 at 82, 95; HR (testimony of the appellant). The appellant was evaluated by OMS on September 14-15, 2016, and OMS cleared him for duty without medical restrictions. IAF, Tab 9 at 196-97. On September 19, 2016, the appellant resigned from his position. Id. at 20. For disability retirement purposes, the relevant question is whether the agency is unable to reasonably accommodate the appellant, not whether it has refused to accommodate him. Dec v. Office of Personnel Management , 47 M.S.P.R. 72, 79 (1991). Moreover, the burden of proof is on the appellant to show that he could not be reasonably accommodated in the position held. Confer, 111 M.S.P.R. 419, ¶ 29. In determining whether the appellant has met his burden, the Board will, among other things, consider the relevant medical evidence and compare it to the job requirements. See, e.g., Thomas v. Office of Personnel Management, 54 M.S.P.R. 686, 691 (1992) (finding accommodation unreasonable by looking to the medical evidence and comparing it to the job requirements). In assessing this element of the appellant’s case, we are mindful that he is essentially required to prove a negative. Evidence that a reasonable accommodation was unavailable is commonly satisfied through the employing agency’s Certification of Accommodation and Reassignment Efforts. See, e.g., Chavez v. Office of Personnel Management , 111 M.S.P.R. 69, ¶¶ 14-15 (2009); Thieman v. Office of Personnel Management , 78 M.S.P.R. 113, 121 (1998). In the absence of a concession from the Government that reasonable accommodation was not possible, the Board will need to look to other evidence and draw appropriate inferences. We are also mindful of the burden of proof applicable to11 the appellant’s claim—he is required to prove by preponderant evidence, i.e., more likely than not, that the agency would have been unable to accommodate his condition. See 5 C.F.R. §§ 1201.4(q), .56(b)(2)(ii). He is not required to prove the issue definitively . Considering the record evidence, we find that, more likely than not, the agency would have been unable to accommodate the appellant in his Production Controller position, even if it had tried. Although the agency did not attempt to accommodate the appellant’s condition, this was because its OMS examining physician opined that the appellant was capable of just performing fulltime duty in his current position and rendering useful and efficient service without any accommodations at all. IAF, Tab 9 at 196-97. However, the record contains no explanation of how the OMS physician made his determination and, as explained above, the determination was incorrect. The administrative judge found that the agency could likely have accommodated the appellant by reassigning him to a Production Controller position outside of the 531st Commodities Maintenance Squadron. ID at 17. He noted that the appellant requested reassignment because of stress related to his coworkers and concluded that his disability was “situational,” i.e., related to the particular individuals with whom he was working. He found that the appellant could probably have worked as a Production Controller in another location. ID at 16-17; IAF, Tab 9 at 95, 195. However, the balance of the evidence shows that the appellant’s disability prevented him from working in general—not just working with particular people. As noted above, both S.B. and J.L. stated unequivocally that the appellant was disabled from working in any position. IAF, Tab 9 at 120-21, 194; see Kimble, 102 M.S.P.R. 604, ¶¶ 6, 12-16 (finding that the appellant’s disabling depression and anxiety were not situational because the medical evidence showed that these conditions prevented her from working in any position). The appellant’s failed attempt to resume employment in early 2017 lends credence to these medical opinions. The evidence shows that the appellant’s psychological conditions12 prevented him from working productively in a different position, with different coworkers, and for a different employer. IAF, Tab 14 at 58; HR (testimony of the appellant). We have considered whether there might have been other accommodations, such as allowing for additional leave, that could have enabled the appellant to resume useful and efficient service as a Production Controller. However, the evidence shows that the time that the appellant spent away from work between 2016 to 2019, receiving regular mental health treatment the entire time, did not enable him to recover to the point that he could have returned to work. IAF, Tab 9 at 115-21, 194. Considering the nature of the appellant’s condition and its deleterious effect on his ability to work in general, and work with others in particular, we find it more likely than not that the agency could not have provided him an effective accommodation. The appellant did not decline a reasonable offer of reassignment. There is no evidence that the agency ever offered the appellant a reassignment, reasonable or otherwise. In fact, the record shows that the appellant requested to try a reassignment, and that the agency denied his request. IAF, Tab 9 at 95, 196-97. We therefore find that the appellant did not decline a reasonable offer of reassignment to a vacant position. Because the appellant has proven all the elements of his case, he is entitled to the disability retirement benefits he seeks. ORDER We ORDER OPM to grant the appellant’s application for disability retirement. OPM must complete this action no later than 20 days after the date of this decision. We also ORDER OPM to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. We ORDER the appellant to provide all necessary13 information OPM requests to help it carry out the Board’s Order. The appellant, if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181(b). No later than 30 days after OPM tells the appellant it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision on this appeal if the appellant believes that OPM did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes OPM has not fully carried out the Board’s Order, and should include the dates and results of any communications with OPM. See 5 C.F.R. § 1201.182(a). This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. § 1201.113(c)). NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO REQUEST ATTORNEY FEES AND COSTS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set forth at title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal. NOTICE OF APPEAL RIGHTS7 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 7 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.14 Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 15 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and 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 the16 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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.8 The court of appeals must receive your petition for 8 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of17 review within 60 days of the date of issuance of this decision. 5 U.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. MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 18 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.19	Montez_Matthew_D_DE-844E-19-0432-I-1_Final_Order.pdf	2024-09-19	MATTHEW D. MONTEZ v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DE-844E-19-0432-I-1, September 19, 2024	DE-844E-19-0432-I-1	NP
489	https://www.mspb.gov/decisions/nonprecedential/Hudson_Claude_E_SF-3443-21-0364-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CLAUDE E. HUDSON, JR., Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER SF-3443-21-0364-I-1 DATE: September 19, 2024 THIS ORDER IS NONPRECEDENTIAL1 Claude E. Hudson, Jr. , Berry Creek, California, pro se. Catherine Oh , Palo Alto, California, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member* *Member Kerner recused himself and did not participate in the adjudication of this appeal. REMAND ORDER The appellant has filed a petition for review of the initial decision, which dismissed his appeal for lack of jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the initial decision , and 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). REMAND the case to the Western Regional Office for further adjudication in accordance with this Remand Order. We also FORWARD the appellant’s petition for review to the regional office for docketing as a new individual right of action (IRA) appeal. BACKGROUND The appellant was a WG-10 Electrician for the agency. Initial Appeal File (IAF), Tab 10 at 9. On February 13, 2012, he suffered a compensable injury and was absent from duty, receiving wage loss compensation benefits until October 1, 2018, when the agency returned him to duty in his position of record. IAF, Tab 5 at 13-14, 17, Tab 10 at 9-22. On April 6, 2019, the appellant resigned. IAF, Tab 10 at 23. On May 25, 2021, the appellant filed a Board appeal, indicating that he was appealing a “failure to restore leave and payments.” IAF, Tab 1 at 3. The appellant explained that he had requested restoration of annual leave, and although his supervisor approved his request, his leave was never actually restored. Id. at 5, 12. He appeared to attribute the matter to an administrative error in the submission of his claim for compensation. Id. at 5. The appellant did not request a hearing. Id. at 2. The administrative judge issued an acknowledgment order, stating that the Board might lack jurisdiction over the appellant’s claim outside the context of an IRA appeal, a Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) appeal, or a Veterans Employment Opportunities Act of 1998 (VEOA) appeal. IAF, Tab 2 at 2-3. He advised the appellant to indicate whether he was attempting to pursue one of these types of claims and ordered him to file evidence and argument on the jurisdictional issue. Id. at 3. The appellant responded, asserting that he had filed an equal employment opportunity case, which had settled, and the workers’ compensation issue was outside the scope of that settlement agreement. IAF, Tab 4 at 3. He filed some documentary evidence2 related to his settlement and to his injury, absence, and return to duty.2 IAF, Tab 4 at 4, Tab 5 at 4-27. The appellant further argued that the Board has jurisdiction over this appeal as a prohibited personnel practice under 5 U.S.C. § 2302, and he provided evidence of his efforts to receive payment for restored annual leave. IAF, Tab 11. The agency moved to dismiss the appeal for lack of jurisdiction. IAF, Tab 10. After the record on jurisdiction closed, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 12, Initial Decision (ID). He found that the appellant’s complaint concerning the agency’s failure to restore leave and benefits was not within the Board’s adverse action jurisdiction and that the appellant failed to identify any other basis for Board jurisdiction. ID at 3-5. The appellant has filed a petition for review in which he appears to argue that the Board has jurisdiction over this appeal under the Whistleblower Protection Enhancement Act of 2012 (WPEA) and that the agency improperly delayed in restoring him to duty. Petition for Review (PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3. ANALYSIS The Board’s jurisdiction is not plenary; it 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). Absent an otherwise appealable action, the Board generally lacks jurisdiction over restoration of leave matters. See Fesler v. Department of the Interior , 52 M.S.P.R. 660, 663 (1992). For the reasons explained in the initial decision, we agree with the administrative judge that the appellant did not make a nonfrivolous allegation of 2 The appellant also filed copies of several documents that pertain to financial hardship and an ongoing dispute with his property and casualty insurer. IAF, Tab 5 at 28-40, Tab 8. These documents are not germane to the appellant’s employment.3 Board jurisdiction under VEOA, USERRA, the WPEA, or 5 U.S.C. chapter 75.3 ID at 3-5. Nor is a prohibited personnel practice an independent 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). Nevertheless, on petition for review, the appellant alleges that, after the initial decision was issued, he filed a whistleblower complaint with the Office of Special Counsel (OSC). PFR File, Tab 1 at 4, 11-13. The mere filing of an OSC whistleblower complaint is insufficient to establish Board jurisdiction over an IRA appeal. Cf. Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 6 (2014) (setting forth the jurisdictional elements for an IRA appeal). However, it appears that the appellant is attempting to invoke the Board’s IRA jurisdiction and that he has already taken the initial step of filing a complaint with OSC under 5 U.S.C. § 1214(a)(3). Mindful that there is a statutory deadline for filing an IRA appeal that is not subject to waiver for good cause shown, and in the interest of preserving this pro se appellant’s rights, we forward his petition for review to the regional office for docketing as a new IRA appeal. See 5 U.S.C. § 1214(a)(3)(A)(ii) (providing that an IRA appeal must be filed no more than 60 days after OSC notifies the complainant that it has terminated its investigation); Pacilli v. Department of Veterans Affairs , 113 M.S.P.R. 526, ¶ 10 (holding that the statutory time limit for filing an IRA appeal cannot be waived for good cause shown), aff’d, 404 F. App’x 466 (Fed. Cir. 2010); see, e.g., Murphy v. Department of Veterans Affairs , 102 M.S.P.R. 238, ¶¶ 6, 9-10 (2006) (forwarding the appellant’s request for corrective action, made for the first time on petition for review in her constructive adverse action appeal, for docketing as an IRA appeal). The IRA appeal will be deemed filed on July 21, 2021, the date of the appellant’s petition for review in this case. After docketing this appeal, the administrative judge should confirm that the appellant 3 Nor did the appellant make a nonfrivolous allegation of Board jurisdiction under 38 U.S.C. § 714. 4 wishes to pursue corrective action under 5 U.S.C. § 1221 and, if he does, fully apprise him of his jurisdictional burden. See Murphy, 102 M.S.P.R. 238, ¶ 9. We also find that the instant appeal needs to be remanded for further proceedings under 5 U.S.C. § 7701 because it appears that the appellant may be attempting to raise a restoration claim under 5 C.F.R. part 353, subpart C. An administrative judge may dismiss an appeal for lack of jurisdiction only if the appellant has been placed on specific notice of what must be shown or alleged to establish jurisdiction, and the appellant fails to make the requisite showing or allegations. See Burgess v. Merit Systems Protection Boar d, 758 F.2d 641, 643-44 (Fed. Cir. 1985). Here, although the facts of this case revolve around the appellant’s absence from duty for a compensable injury, the administrative judge did not put him on notice of the jurisdictional elements of a restoration claim and afford him an opportunity to establish jurisdiction. See Kapica v. U.S. Postal Service, 95 M.S.P.R. 556, ¶ 8 (2004). The statute that governs restoration to duty after a compensable injury is 5 U.S.C. § 8151. This statute has two distinct components. Gallo v. United States, 529 F.3d 1345, 1348-49 (Fed. Cir. 2008). Subsection (a) provides that a compensably injured individual who returns to Federal employment must receive service credit “for the purposes of within-grade step increases, retention purposes, and other rights and benefits based upon length of service” for the entire amount of time that he was on the workers’ compensation rolls. 5 U.S.C. § 8151(a). Subsection (b) prescribes the efforts that an agency must undertake to restore a compensably injured individual to duty once he has recovered from his injury. 5 U.S.C. § 8151(b). In other words, the statute provides compensably injured individuals both the right to be restored to duty and the right to receive service credit for their time on the workers’ compensation rolls. The parameters of these restoration rights are set out more fully in implementing regulations of the Office of Personnel Management (OPM), and they differ to some degree depending on the timing and extent of the employee’s recovery. Hall v.5 Department of the Navy , 94 M.S.P.R. 262, ¶ 17 (2003); 5 C.F.R. §§ 353.107, 353.301. OPM has also provided a regulatory right of appeal to the Board for a denial of restoration or an “improper restoration,” i.e., a restoration to duty without the proper service credit. These appeal rights likewise differ depending on the timing and extent of the employee’s recovery. Hall, 94 M.S.P.R. 262, ¶ 18; 5 C.F.R. § 353.304. In this case, it is not clear whether the appellant is attempting to appeal a denial of restoration, an improper restoration, or both. To the extent that the appellant is attempting to appeal a denial of restoration, it appears to be undisputed that he remained on the workers’ compensation rolls until October 1, 2018, whereupon the agency promptly restored him to duty in his position of record. IAF, Tab 10 at 22. Therefore, even if the appellant fit the definition of “fully recovered” under 5 C.F.R. § 353.102, he would not be able to establish jurisdiction over a denial of restoration claim as a fully recovered individual. The record shows that, immediately upon cessation of workers’ compensation payments, the agency met or exceeded its statutory and regulatory obligations to restore the appellant to duty as a fully recovered individual. See 5 U.S.C. § 8151(b)(2); 5 C.F.R. § 353.301(b).4 4 Under OPM’s regulations, individuals in the competitive service who fully recover after 1 year are entitled to reemployment priority under 5 C.F.R. part 330, subpart B, and have Board appeal rights as prescribed under 5 C.F.R. § 330.214. 5 C.F.R. § 353.304(b). However, these provisions apply only to individuals who were separated from service or placed in a position with lower grade or pay as a result of compensable injuries. See 5 C.F.R. § 330.203(b) (setting forth the eligibility criteria for placement on a reemployment priority list due to a compensable injury). Because the appellant in this case was carried in leave without pay status in his same WG-10 Electrician position for the entire duration of his absence from duty, IAF, Tab 10 at 9-22, the agency’s more general statutory obligation to “make all reasonable efforts to place . . . the [employee] in his former or equivalent position” would apply instead. See 5 C.F.R. § 353.304(a) (providing the right to appeal an agency’s failure “to return an employee following a leave of absence”); see also Gallo, 529 F.3d at 1351 (holding that the appeal rights provided in 5 C.F.R. § 353.304(b) are not exclusive of the appeal rights provided in 5 C.F.R. § 353.304(a)). 6 Nevertheless, this does not necessarily prevent the appellant from establishing Board jurisdiction over a denial of restoration claim as a partially recovered individual. Indeed, the appellant appears to argue on petition for review that the agency should have restored him to duty sooner than it did because he had previously recovered sufficiently to perform work with less demanding physical requirements. PFR File, Tab 1 at 5; see 5 C.F.R. § 353.102 (defining “partially recovered”). Furthermore, although the agency ultimately restored the appellant to duty as a WG-10 Electrician, the Board has held that an unreasonable delay in restoring an employee to duty may be tantamount to a denial of restoration . Taylor v. U.S. Postal Service , 69 M.S.P.R. 479, 483 (1996). Thus, to the extent that the appellant is attempting to appeal a denial of restoration as a partially recovered individual, he may establish jurisdiction over his appeal by making nonfrivolous allegations that: (1) he was absent from his position due to a compensable injury; (2) he recovered sufficiently to return to duty on a part-time basis, or to return to work in a position with less demanding physical requirements than those previously required of him; (3) the agency denied his request for restoration; and (4) the denial was arbitrary and capricious. Cronin v. U.S. Postal Service , 2022 MSPB 13, ¶ 12. Nor would the appellant necessarily be prevented from establishing Board jurisdiction over a denial of restoration claim as a physically disqualified individual. He may establish jurisdiction over such an appeal by making nonfrivolous allegations that: (1) he was absent from his position due to a compensable injury; (2) he was “physically disqualified” within the meaning of 5 C.F.R. § 353.102; (3) he requested restoration within 1 year of the date of his eligibility for workers’ compensation benefits; and (4) the agency failed to afford him the restoration rights set forth in 5 C.F.R. § 353.301(c). See Gerdes v. Department of the Treasury , 89 M.S.P.R. 500, ¶¶ 6-13 (2001). To the extent that the appellant is attempting to appeal an improper restoration, i.e., a restoration to duty without full-service credit for time spent on7 the workers’ compensation rolls, the Board has jurisdiction to determine whether an agency has fully provided a restored employee with the independent restoration rights to which he is entitled under 5 U.S.C. § 8151(a). Gallo, 529 F.3d at 1350-52; McFarlane v. U.S. Postal Service , 110 M.S.P.R. 126, ¶ 18 (2008). To establish jurisdiction over such a claim, an appellant must make nonfrivolous allegations that: (1) the agency restored him to duty following a separation or absence due to a compensable injury; and (2) the agency failed to afford him service credit as required under 5 U.S.C. § 8151(a) and 5 C.F.R. § 353.107. See McFarlane, 110 M.S.P.R. 126, ¶¶ 18-19. In this case, it appears that the appellant may be seeking credit for annual leave that would have accrued if he had remained in a work or paid leave status during the 6.5 years that he was on leave without pay and receiving workers’ compensation. IAF, Tab 1 at 5, Tab 5 at 8. This is not the sort of service credit that is contemplated in 5 U.S.C. § 8151(a). “Although the rate at which a Federal employee accumulates annual and sick leave depends on his or her length of service, an employee’s basic entitlement to such leave does not.” Burtch v. U.S. Postal Service, 47 M.S.P.R. 518, 521, aff’d, 949 F.2d 404 (Fed. Cir. 1991) (Table). Furthermore, the appellant’s receipt of workers’ compensation benefits does not create an exception to the general rule that annual leave does not accrue during extended periods of leave without pay. See Burtch, 47 M.S.P.R. at 521-22; 5 C.F.R. § 630.208. Nevertheless, because this pro se appellant’s pleadings are not entirely clear, and because he did not previously receive notice of his jurisdictional burden, he will have an opportunity to clarify his claim and establish jurisdiction on remand.5 5 Although the SF-50 documenting the appellant’s return to duty states that “the entire period [from February 15, 2012, through October 1, 2018] shall be credited for all rights and benefits based on length of service,” it is not clear that the agency actually accomplished this. The SF-50 documenting the appellant’s initial absence from duty shows that he was a WG-10, step 4 employee on February 15, 2012, and the SF-50 documenting his resignation shows that he was still a WG-10, step 4 employee more than 7 years later. IAF, Tab 10 at 9. It would appear that the appellant should have received multiple within-grade increases for that time period if the agency had treated8 We observe that, even if the appellant were to establish jurisdiction over a restoration appeal, there would be a significant question of timeliness. A restoration appeal must be filed no later than 30 days after the effective date of the action being appealed, or 30 days after the appellant’s receipt of the agency’s decision, whichever is later. Cranston v. U.S. Postal Service , 106 M.S.P.R. 290, ¶ 8 (2007); 5 C.F.R. § 1201.22(b). Because the appellant did not file the instant appeal until May 25, 2021, it is likely that his appeal was untimely filed by a number of years. Nevertheless, before the administrative judge dismisses the appeal as untimely, the appellant will receive explicit notice of his burden on the timeliness issue and an opportunity to demonstrate that his appeal was timely or that there was good cause for any delay. See Wright v. Department of Transportation, 99 M.S.P.R. 112, ¶ 12 (2005). To the extent that the jurisdictional and timeliness issues are intertwined, the administrative judge should address the jurisdictional issue first. See Wylie v. Department of Agriculture, 99 M.S.P.R. 71, ¶ 6 (2005). Otherwise, the administrative judge may address the jurisdictional and timeliness issues in whichever order he deems appropriate. him “as though he . . . had never left.” 5 C.F.R. § 353.107; see 5 C.F.R. § 531.405. Moreover, it is well established that “the SF-50 is not a legally operative document controlling on its face an employee’s status and rights.” Grigsby v. Department of Commerce, 729 F.2d 772, 776 (Fed. Cir. 1984). 9 ORDER For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.10	Hudson_Claude_E_SF-3443-21-0364-I-1_Remand_Order.pdf	2024-09-19	null	SF-3443-21-0364-I-1	NP
490	https://www.mspb.gov/decisions/nonprecedential/DeNofrio_James_M_PH-1221-19-0038-W-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JAMES MICHAEL DENOFRIO, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER PH-1221-19-0038-W-1 DATE: September 19, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Stephen D. Wicks , Esquire, Altoona, Pennsylvania, for the appellant. Marcus S. Graham , Esquire, Pittsburgh, Pennsylvania, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member* *Member Kerner recused himself and did not participate in the adjudication of this appeal. FINAL ORDER The appellant has filed a petition for review of the initial decision, which denied his request for corrective action in this individual right of action (IRA) appeal. Generally, we grant petitions such as this one only in the following 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to supplement the administrative judge’s findings of fact and apply the appropriate analytical framework, we AFFIRM the initial decision. BACKGROUND At the time relevant to this appeal, the appellant held the position of Administrative Officer for an agency facility in Altoona, Pennsylvania. Initial Appeal File (IAF), Tab 1 at 1. He has filed multiple complaints with the Office of Special Counsel (OSC), alleging that he was subject to whistleblower reprisal. Id. at 8. In a letter dated September 2018, OSC closed one of those complaints and advised the appellant of his Board appeal rights. Id. at 34-37. This timely IRA appeal followed. Id. at 1-6. After developing the record and holding a 3-day hearing, the administrative judge issued an initial decision. IAF, Tab 53, Initial Decision (ID). The administrative judge first found that the appellant met his burden of proving that he made protected disclosures and engaged in protected activities. ID at 4-5, 23-24. As further detailed in the initial decision, this included (1) prior OSC complaints, (2) prior Board appeals, (3) an email to Congress about the Altoona Director instructing staff to not provide testimony or respond to2 subpoenas, (4) emails to Congressional staff about health and safety concerns at the Altoona facility, and (5) a complaint with the agency’s Office of Inspector General (OIG) alleging a violation of policy regarding the timely discharge of patients. ID at 4-5. The administrative judge next found that the appellant proved the contributing factor criterion for two nonselections and an alleged hostile work environment. ID at 24-25. Nevertheless, he found that the appellant was not entitled to corrective action. Regarding the nonselections, the administrative judge found that the agency rebutted the appellant’s prima facie case of reprisal. ID at 25-30. Regarding the hostile work environment claim, the administrative judge found that most of the alleged harassment was not attributable to the appellant’s protected disclosures or activities, ID at 30-35, and the only exception did not rise to the level of actionable harassment, ID at 35-37. The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. In this petition, the appellant challenges the administrative judge’s findings regarding one of the two nonselections adjudicated in this appeal—his nonselection to the Program Specialist position.2 Id. at 4-8, 17-18. He also challenges the administrative judge’s finding regarding his claim of a retaliatory hostile work environment. Id. at 8-19. Finally, the appellant submits new evidence, id. at 25-68, along with arguments that we should consider this new evidence for the first time on review, id. at 19-24. The agency has filed a response to the appellant’s petition. PFR File, Tab 3. 2 Because the appellant has not presented any arguments regarding his nonselection for the Program Analyst position and the administrative judge’s findings about the same, we will not revisit that matter.3 DISCUSSION OF ARGUMENTS ON REVIEW After establishing jurisdiction in an IRA appeal, an appellant has the burden of proving by preponderant evidence3 that (1) he made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the disclosure or protected activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a). Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016). If the appellant meets this burden, the agency is given an opportunity to prove, by clear and convincing evidence,4 that it would have taken the same personnel action in the absence of the protected disclosure or activity. Id. In determining whether the agency has met its burden of proving that it would have taken the same personnel action in the absence of an appellant’s protected disclosures or activities, the Board will consider the following factors: (1) the strength of the agency’s evidence in support of its action; (2) the existence and strength of any motive to retaliate on the part of the agency officials involved in the decision; and (3) any evidence that the agency takes similar actions against employees who are not whistleblowers, but who are otherwise similarly situated. Carr v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999). The Board does not view these factors as discrete elements, each of which the agency must prove by clear and convincing 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). In addition, the Board is mindful that “[e]vidence 3 Preponderant evidence is the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q). 4 Clear and convincing evidence is that measure or degree of proof that produces in the mind of the trier of fact a firm belief as to the allegations sought to be established; it is a higher standard than preponderant evidence. 5 C.F.R. § 1209.4(e). 4 only clearly and convincingly supports a conclusion when it does so in the aggregate considering all the pertinent evidence in the record, and despite the evidence that fairly detracts from that conclusion.” Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012). Once more, the administrative judge found that the appellant proved that he made protected disclosures and engaged in protected activities. ID at 4-5, 23-24. The administrative judge also found that the knowledge/timing test was satisfied for the alleged personnel actions at issue in this appeal—two nonselections and a hostile work environment. ID at 24-25; see Ayers v. Department of the Army , 123 M.S.P.R. 11, ¶ 25 (2015) (explaining that an appellant can prove the contributing factor element by showing that the official taking the personnel action knew of the protected disclosure or activity within a period of time such that a reasonable person could conclude that the protected disclosure or activity was a contributing factor in the personnel action). These findings are not disputed on review. The arguments on review are limited to the following: First, did the agency prove by clear and convincing evidence that its nonselection of the appellant for the Program Specialist position would have occurred in the absence of the appellant’s protected disclosures and activities? Second, did the appellant prove that he was subject to harassment or any other change that rose to the level of an actionable “personnel action” and, if so, did the agency prove that the same personnel action would have occurred in the absence of the appellant’s protected disclosures and activities? The agency rebutted the appellant’s prima facie case of reprisal regarding his nonselection to the Program Specialist position. The administrative judge found that the appellant met his burden of establishing a prima facie case of reprisal regarding his nonselection to the Program Specialist position. ID at 23-25; see King v. Department of the Army , 116 M.S.P.R. 689, ¶ 10 (2011) (recognizing that a nonselection constitutes a5 personnel action under the whistleblower statute). This finding is not disputed on review. Therefore, it became the agency’s burden to prove by clear and convincing evidence that the same nonselection would have occurred in the absence of the appellant’s protected disclosures and activities. The following facts about this nonselection, as explained by the administrative judge and documented throughout the record, appear to be undisputed: The appellant was among the 13 candidates who received an initial interview for the Program Specialist vacancy. ID at 6. A three-member panel conducted those initial interviews, asking each candidate the same questions, as each panel member separately rated their answers. ID at 6-7; IAF, Tab 11 at 56-79. Of the initial interviewees, two panel members gave the appellant the third-highest score, and one panel member gave the appellant the fourth-highest score. ID at 7; IAF, Tab 11 at 53. With the scores across panel members combined, the appellant had the third-highest score of those interviewed for the Program Specialist position. ID at 7; IAF, Tab 11 at 53. At the next step in the selection process, the initial interview panel members forwarded only the two highest scoring candidates—which did not include the appellant—to the selecting official for a second interview. ID at 8. The selecting official conducted those two interviews and made a selection. Id. In analyzing whether the agency met its burden of proving that this nonselection would have occurred in the absence of the appellant’s protected disclosures and activities, the administrative judge considered each member of the initial interview panel and the selecting official. ID at 26-29. Of the initial interview panel members, she found that one had no knowledge of the appellant’s whistleblowing and there was no indication that he was influenced by someone who did. ID at 27. The administrative judge next found that the other two initial interview panel members admitted that they had knowledge of the appellant’s whistleblowing, but credibly testified that they did not discuss his whistleblowing6 or otherwise let it influence the selection process. ID at 9, 27-28. The administrative judge further found that the scores among panel members did not suggest retaliation, since those with and without knowledge of the appellant’s whistleblowing scored him similarly and all gave him high marks; none gave him lower marks that might indicate an attempt to sabotage the appellant. ID at 28. Lastly, the administrative judge found that these panel members did not have any discernable motive to retaliate because they were not implicated by the appellant’s whistleblowing activity and they did not work at the Altoona facility at the time of the selection process. ID at 27-28. Regarding the selecting official—the Director of the Altoona facility—the administrative judge made several findings. Most notably, he found that there was no indication that the selecting official had any input on the narrowing of candidates to exclude the appellant from further consideration. ID at 26-27. The administrative judge also indicated that, although the selecting official was implicated by some of the appellant’s whistleblowing activity, that whistleblowing occurred after the nonselection. ID at 26. On review, the appellant argues that the administrative judge made several errors or omissions of fact, PFR File, Tab 1 at 4-8, and therefore failed to comply with the requirements of Carr and Whitmore, id. at 17-18. As further described below, we modify the initial decision to supplement the administrative judge’s findings while agreeing with his conclusion that the agency met its burden. The appellant first argues that one of the panel members with knowledge of his status as a whistleblower worked at the Altoona facility during the relevant period, despite the administrative judge indicating otherwise. Id. at 4-5 (referencing ID at 27). In particular, the official had left his permanent position at a Pittsburgh facility for a detail assignment as the Executive Assistant to the Altoona Director at the time of the appellant’s interview. Id. On this point, the evidence supports the appellant’s assertion. According to deposition testimony from this official, he served as the Executive Assistant from January through7 March 2018, and the appellant’s interview occurred in the intervening month of February. IAF, Tab 11 at 51-52, Tab 41 at 62, 82-83. Next, the appellant argues that the administrative judge was correct to note that this member of the initial interview panel—the Executive Assistant—made the decision to forward only the top two scoring interviewees to the Director for a final selection before any interview had occurred, but the administrative judge failed to note that he did so in concert with the Director, and that the Executive Assistant would ultimately reveal all the initial interview scores to the Director while forwarding only the top two for selection. PFR File, Tab 1 at 5-6 (referencing IAF, Tab 11 at 44-45, Tab 41 at 107-08). On these points, the evidence again supports the appellant’s assertion. When asked why he forwarded only the top two candidates from the initial interviews for further consideration, the Executive Assistant indicated that this process had been made in consultation with the Director. IAF, Tab 41 at 107-08. But he also said this process was consistent with past practice at both the Altoona facility and the Pittsburg facility, where he had been working previously. Id. As for the appellant’s latter point, an email from the Executive Assistant to the Director contains text that recommends the top two candidates receive a second interview, along with an attachment that seems to include all interview scores. IAF, Tab 11 at 44. The appellant also argues that the Director had knowledge of the appellant’s whistleblowing and a motive to retaliate prior to the nonselection, despite the administrative judge indicating otherwise. PFR File, Tab 1 at 6-7 (referencing ID at 26). Once again, the appellant’s assertion has merit. Among other things, the record includes a news article dated months before the appellant’s nonselection that describes the appellant’s whistleblowing, along with the Director’s involvement in the matters underlying his whistleblowing. IAF, Tab 27 at 83. It also includes an email chain in which the Director discusses this new article. IAF, Tab 38 at 13-14.8 The agency has not disputed these facts, as described in this portion of the appellant’s petition. PFR File, Tab 3 at 6-7. Instead, the agency argues that these matters to which the appellant has pointed do not warrant a different result. Id. We agree. Of the three members of the initial interview panel, which would ultimately exclude the appellant from further consideration, two had some knowledge of the appellant’s status as a whistleblower. It is possible these officials could have held some institutional motive to retaliate. See Whitmore, 680 F.3d at 1370 (recognizing that “[t]hose responsible for the agency’s performance overall may well be motivated to retaliate even if they are not directly implicated by the disclosures, and even if they do not know the whistleblower personally, as the criticism reflects on them in their capacities as managers and employees”). But we are aware of nothing that would support a conclusion that they had a personal motive to retaliate, or that any institutional motive was significant. One panel member worked at a different facility and, as the appellant has noted, the other panel member had only recently joined the Altoona facility for a detail assignment. E.g., IAF, Tab 41 at 62, 82-83. The administrative judge found that the initial interview panel members credibly testified that they did not discuss the appellant’s status as a whistleblower and that they did not allow his whistleblower status to influence their decisions. ID at 27-28. We discern no basis for disturbing that credibility determination. See Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002). The documentary record also demonstrates that panel members with and without knowledge of the appellant’s whistleblowing treated the appellant and all other candidates similarly, both in terms of the interview process and their scoring. IAF, Tab 11 at 56-79. Each rated the appellant highly, just not quite high enough for him to be among the top two forwarded on for further consideration. Id. at 53.9 As for the Director, who was the selecting official for the Program Specialist vacancy, the record reflects a significant motive to retaliate because some of the appellant’s protected disclosures and activities alleged that she had engaged in wrongdoing. E.g., IAF, Tab 27 at 83. However, the Director essentially lacked any opportunity to retaliate against the appellant with respect to the Program Specialist vacancy because the initial interview panel acted alone in eliminating the appellant from further consideration. IAF, Tab 11 at 44, 53. It seems as if the appellant’s theory is that the Director may have conspired with or otherwise influenced one or more of the initial interview panel members to ensure his nonselection. We have carefully considered this possibility because of the Director’s significant motive to retaliate. However, clear and convincing evidence supports a different conclusion. The record supports a finding that these individuals acted independently, without any meaningful input or influence from the Director. It further supports a finding that they had little to no motive to retaliate, and those with and without knowledge of the appellant’s whistleblowing rated him similarly—better than most candidates but just outside of the top two who would be further considered for the Program Specialist position. Accordingly, as modified by our analysis above, we agree with the administrative judge’s conclusion. Although the appellant presented a prima facie case of reprisal regarding this nonselection, the agency has met its burden of proving by clear and convincing evidence that the appellant’s nonselection for the Program Specialist position would have occurred in the absence of his protected disclosures and activities. The appellant failed to prove that he was subject to a significant change in duties, responsibilities, or working conditions. The other alleged personnel action adjudicated below and raised again on review was a hostile work environment. E.g., IAF, Tab 46 at 5-6; ID at 3. For this claim, the administrative judge first described the facts surrounding four categories of harassment or improprieties the appellant alleged: (a) the agency10 stripped the appellant’s Administrative Officer duties for a period of time, (b) agency employees professionally and personally shunned him, (c) management encouraged others to file complaints against the appellant, and (d) the agency placed the appellant under a formal investigation. ID at 3, 11-22. Next, the administrative judge found that the knowledge/timing test was satisfied for these instances of alleged harassment, ID at 25, but that only the management encouragement of complaints against the appellant was retaliatory, and that it did not rise to the level of an actionable personnel action, ID at 30-37. As further explained below, we find that the administrative judge erred in how he addressed this claim. Using the proper analytical framework, we find that the appellant failed to prove that he was subject to a personnel action, as that term is defined in the whistleblower statute. Therefore, the appellant failed to meet his burden for this claim, and we need not shift the burden to the agency for the matter. See Clarke v. Department of Veterans Affairs , 121 M.S.P.R. 154, ¶ 19 n.10 (2014) (recognizing that the Board may not proceed to the clear and convincing evidence test unless it has first determined that the appellant established his prima facie case), aff’d, 623 F. App’x 1016 (Fed. Cir. 2015). The administrative judge correctly noted that the whistleblower statute’s definition of a personnel action includes, inter alia, a “significant change in duties, responsibilities, or working conditions” and that phrase must be interpreted broadly. 5 U.S.C. § 2302(a)(2)(A)(xii); ID at 30 (citing Savage v. Department of the Army , 122 M.S.P.R. 612, ¶ 23 (2015), overruled in part by Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 23-25). During the period that followed the administrative judge’s initial decision, we issued a decision that further clarified the matter, particularly as it relates to allegations of a hostile work environment. See Skarada v. Department of Veterans Affairs , 2022 MSPB 17. In Skarada, we explained that although the term “hostile work environment” has a particular meaning in some other contexts, allegations of a11 hostile work environment may only establish a personnel action under the whistleblower statute if they meet the statutory criteria, i.e., a significant change in duties, responsibilities, or working conditions. Id., ¶ 16. And while the “significant change” personnel action should be interpreted broadly to include harassment and discrimination that could have a chilling effect on whistleblowing or otherwise undermine the merit system, only agency actions that, individually or collectively, have practical and significant effects on the overall nature and quality of an employee’s working conditions, duties, or responsibilities will be found to constitute a personnel action covered by section 2302(a)(2)(A)(xii). Id. The circumstances of Skarada are worth summarizing for the sake of comparison with the facts of the instant appeal. In Skarada, the appellant alleged that his chain of command directed him to stop attending leadership meetings and performing extra duties, and excluded him from the hiring process for two of his new subordinates. Id., ¶ 17. However, we found that these appeared to be collateral duties and the appellant failed to prove that these changes were significant, as required to constitute a personnel action under the whistleblower statute. Id., ¶¶ 24-25. The appellant in Skarada also alleged that the agency excluded him from meetings and conversations, subjected him to multiple investigations, accused him of improprieties, refused his request for review of his position for a possible upgrade, yelled at him on multiple occasions, and failed to provide him with adequate support. Id., ¶ 18. For those matters, the Board similarly found that the appellant failed to prove that he was subject to a personnel action. Id., ¶¶ 26-29. We explained that, although he presented evidence in support of many of his allegations, the appellant in Skarada failed to prove by preponderant evidence that the agency’s actions constituted harassment to such a degree that his working conditions were significantly and practically impacted. Id., ¶ 29. Put another way, the appellant may have established an unpleasant or unsupportive work12 environment, but he did not prove that he suffered a significant change in working conditions. Id. Turning back to the circumstances at issue in the instant appeal, the administrative judge erred by considering whether the alleged harassment was retaliatory before deciding whether the alleged harassment constituted a personnel action. Nevertheless, we agree with his findings of fact, and we conclude that the appellant failed to establish agency actions that, individually or collectively, amounted to a personnel action. Stripping the appellant of duties. Regarding the alleged changes in his duties in or around April 2018, the administrative judge recounted how the appellant claimed that numerous tasks were stripped from him, resulting in his workload going from approximately 8 hours per day, to about 1 hour per day. ID at 11-12. In contrast, the individual responsible for changes in his duties at that time—the Acting Chief of Physical Medicine and Rehabilitation Service—provided a different description of the circumstances. ID at 13-14. Broadly speaking, the Acting Chief testified that she had never served as an Acting Chief before, she took over that role while still responsible for her regular position as Supervisor of Care, she had a limited understanding of the appellant’s role, she did not fully understand how to utilize him, and she did not intentionally strip him of any duty. ID at 13. The Acting Chief went on to contest the appellant’s more specific allegations. For example, although the appellant claimed that the Acting Chief stripped him of his role in the budget process, the Acting Chief indicated that she was not asked to submit a budget during her tenure and she knew nothing about one being required, which would explain why she never gave the appellant any associated tasks. Id. In another example, the Acting Chief acknowledged that the appellant was not included in certain action item requests from the front office, but she explained that this was a lapse caused by the action item emails from the front office not being sent to her team, which the Acting Chief remedied once she13 learned of the problem. ID at 13-14. As for the appellant’s allegations that he had been appointed to certain building and expansion projects but was then excluded from them by the Acting Chief, the Acting Chief disagreed. ID at 14. The Acting Chief indicated that while she did not ask the appellant to attend all meetings associated with these projects, she kept him apprised of the same. Id. Finally, the Acting Chief denied the appellant’s claim that he was excluded from participating in Medical Center Memorandums. According to the Acting Chief, there was only one Medical Center Memorandum that the appellant was not initially involved in, and that was simply because another individual—a Physical Therapist—had volunteered for the Memorandum involving a new wellness project. Id. The administrative judge did not explicitly find that the appellant’s testimony was not credible. However, he did find the Acting Chief’s contrary explanation of the circumstances credible and valid for several reasons. ID at 31-32. The administrative judge also noted that other testimony contradicted some of the appellant’s testimony about these matters. In particular, the appellant testified that the Acting Chief’s eventual replacement restored his stripped duties and revealed to the appellant that the Director had given instructions for the appellant to be targeted. ID at 12. However, the Acting Chief’s replacement testified that he received no such instruction and relayed nothing of the sort to the appellant. Id. On review, the appellant argues that when the administrative judge credited the Acting Chief’s explanations of her lacking familiarity with the appellant’s role, the administrative judge failed to consider inconsistencies between her hearing testimony and deposition testimony. PFR File, Tab 1 at 8-10 (referencing, e.g., IAF, Tab 42 at 56, Tab 47, Hearing Recording, Day 2 (HR2) (testimony of Acting Chief). We are not persuaded. The evidence the appellant relies on does suggest that the Acting Chief had some understanding of the appellant’s position when she took over as Acting14 Chief. E.g., IAF, Tab 42 at 56; HR2 at 4:08 (testimony of Acting Chief). But it also supports a conclusion that she lacked a detailed understanding of his position and his involvement in certain projects, and she also lacked a prior working relationship with the appellant, all of which contributed to the temporary changes or lapses that did occur. E.g., IAF, Tab 42 at 58-64; HR2 at 4:09-4:11 (testimony of Acting Chief). We supplement the administrative judge’s findings to conclude that, although the appellant generally described an extreme change in his duties or working conditions—from 8 hours of work per day to 1 hour of work per day— documentary evidence is more consistent with the type of minor changes a subordinate might encounter as they begin working for a new supervisor, particularly when that new supervisor is taking on a new and unfamiliar workload. For example, documents the appellant describes as evidence that he was removed from a particular building project merely consist of a couple cursory emails about the project in which the appellant is not copied. IAF, Tab 26 at 21, Tab 40 at 4-7. Other documentary evidence he submitted about other changes to his duties similarly supports the Acting Chief’s explanation and gives no indication that the appellant suffered the extreme change in duties he alleges. E.g., IAF, Tab 26 at 21-22, Tab 40 at 8-11, Tab 41 at 13-21. Given the record before us, the appellant has not proven by preponderant evidence that changes to his duties and working conditions during the Acting Chief’s tenure were significant. Professional and personal shunning. The next category of alleged harassment was the appellant’s report of being professionally and personally shunned. For this, the administrative judge simply indicated that the record suggested many employees disliked the appellant, but the appellant did not offer any documentation or testimony to show that management sought to actively harass him by encouraging staff to avoid him. ID at 14.15 On review, the appellant presents 15 points in support of his claim of being professionally and personally shunned. PFR File, Tab 1 at 10-13. Many mirror those addressed in one of the other categories of alleged harassment, such as the allegation that the Acting Chief stripped him of duties, so we will not address them again. Many more concern matters occurring after OSC closed its complaint and are, therefore, outside the purview of this appeal. See Mason v. Department of Homeland Security , 116 M.S.P.R. 135, ¶¶ 8-9 (2011) (explaining the exhaustion requirement for IRA appeals, which prevents the Board from considering alleged personnel actions that were not raised before OSC); compare IAF, Tab 1 at 34-37 (OSC’s September 2018 closeout letter), with PFR File, Tab 1 at 12-13 (appellant describing numerous complaints he reported to management between October 2018 and January 2019, including one about his November 2018 performance appraisal), and IAF, Tab 46 at 5 (prehearing order finding that the appellant’s November 2018 performance appraisal was outside the purview of this appeal). For the few points that remain regarding the allegation that he was professionally and personally shunned, the appellant’s arguments on review provide no basis for reaching a conclusion different from that of the administrative judge. To illustrate, the appellant has directed us to his own deposition testimony, where he described one coworker walking away from him, another giving him the middle finger, and his supervisor deleting some of his emails without reading them. PFR File, Tab 1 at 11 (referencing IAF, Tab 24 at 15). He also asserts that agency officials encouraged an agency employee to harass him on private social media accounts. PFR File, Tab 1 at 13 (referencing IAF, Tab 24 at 15). However, he has not directed us to preponderant evidence that these instances of alleged harassment both occurred and rose to the level of a personnel action.16 Management encouraged complaints. Regarding the appellant’s allegation that management encouraged others to file complaints against him, the administrative judge detailed the underlying facts, which we will briefly summarize. First, the appellant was involved in an analysis of new qualifications for the agency’s Physical Therapists, after which a group of Physical Therapists lodged an April 2018 complaint about that analysis and several other issues. ID at 14-18. As a result, the agency convened the fact- finding inquiry that will be discussed below. ID at 19-20. During her interview of several staff members, the investigator responsible for that fact-finding inquiry —a Human Resources Specialist who normally worked at an agency facility on the other side of the country—identified the appellant and one other individual as whistleblowers, and she informed the interviewees that they should consider filing complaints against the appellant and the other whistleblower. ID at 20-21. According to the investigator, she did so for their benefit after learning that the appellant had been naming others in social media posts. ID at 21. The appellant asserted that this led to several additional complaints against him. Id. The administrative judge found nothing nefarious about the initial complaints that led to the formal fact-finding inquiry and found no indication that the complaints were encouraged by management. ID at 33-34. Instead, he found that the appellant provided what seemed to be correct analysis about the Physical Therapists’ qualification standards, and the Physical Therapists responded in an unsurprising way, as they advocated for themselves regarding qualifications to attain the next grade level. Id. On the other hand, the administrative judge found that the investigator tasked with investigating the Physical Therapists’ complaints did encourage additional complaints against the appellant and did identify him as a whistleblower, which the administrative judge described as bizarre and highly unprofessional. ID at 35-36. Nevertheless, the administrative judge further17 found that this and any resulting investigation did not constitute a personnel action under the whistleblower statute. ID at 36-37. In his petition for review, the appellant reasserts that the original complaints were also encouraged by management. PFR File, Tab 1 at 16-17 (referencing ID at 33). However, it seems as if his accompanying arguments and references to evidence of record do not concern the original complaints. They instead concern the resulting investigation, during which the administrative judge found that the investigator did encourage complaints against the appellant. E.g., IAF, Tab 14 at 543, Tab 32 at 9. More importantly, the appellant has not presented anything to warrant us reaching a conclusion different from that of the administrative judge regarding the significance of management’s actions and the encouragement of complaints. The agency placed the appellant under a formal fact-finding inquiry. Pertaining to the allegation that the agency placed the appellant under the formal fact-finding inquiry mentioned above, the administrative judge provided additional details. ID at 15-22. Among other things, he noted that the inquiry covered 11 issues, only 1 of which involved the appellant. ID at 19. That lone issue involving the appellant was an allegation that the appellant and another agency official were limiting the professional development of the agency’s Physical Therapists. Id. On review, the appellant argues that the administrative judge’s description of the facts surrounding this claim are mistaken in that the judge failed to acknowledge how the Physical Therapists learned of the appellant’s analysis regarding their qualifications. PFR File, Tab 1 at 14. While the administrative judge indicated that it was not clear how they came to learn of the appellant’s analysis, the appellant insists that the record shows they learned of his analysis through a certain agency official—the Associate Director for Operations. Id. (referencing ID at 16-17). We recognize that the appellant has pointed to at least some evidence to support this contention. E.g., IAF, Tab 14 at 130-31. However,18 the appellant has not presented any persuasive explanation for why this is particularly relevant. The qualification standards of the agency’s Physical Therapists were a matter of discussion among interested parties, e.g., IAF, Tab 29 at 4-10, leading to disagreement and complaints by the Physical Therapists who were seeking advancement to the next grade level, e.g., IAF, Tab 31 at 9-11. The inclusion of the appellant’s analysis of the matter, which the administrative judge found to be correct, appears rather innocuous, even if that led to the Physical Therapists including the appellant in their complaints about leadership limiting their advancement. ID at 33. The appellant also presents an argument about the scope of the fact-finding inquiry and the administrative judge’s discussions about the same. PFR File, Tab 1 at 15-16 (referencing ID at 20, 34). However, as the administrative judge noted, the investigation resulted in a determination that the appellant had not engaged in any wrongdoing. ID at 34; see IAF, Tab 16 at 57-60. Therefore, the relevance of the appellant’s arguments about the scope of the investigation is not apparent. In sum, the record supports a conclusion that the appellant underwent some changes in duties during the period in which he served under an Acting Chief. It also supports a conclusion that the appellant perceives his working environment as one in which he is not supported. Finally, the record supports a conclusion that the appellant was one of the subjects of a fact-finding inquiry, during which an investigator encouraged others to file complaints against the appellant, but this did not result in the appellant being disciplined or subject to any other notable repercussions. We have considered these matters individually and collectively. After doing so, we find that although the appellant may have established an unpleasant or unsupportive work environment, he did not prove that he was subject to a significant change in duties, responsibilities, or working conditions. Therefore, the appellant has failed to meet his prima facie burden of proof for this claim.19 The evidence submitted for the first time on review does not warrant a different result. As mentioned above, the appellant submitted a series of documents that he did not present below. PFR File, Tab 1 at 25-68. He argues that the agency should have provided each in response to his discovery requests, but the agency failed to do so. Id. at 19-20. Instead, the agency provided the appellant with the documents after the record closed below, in response to a Freedom of Information Act request. Id. In its response, the agency does not directly address the appellant’s assertion that the agency should have provided these documents in response to his discovery requests. The agency simply argues that these documents submitted for the first time on review have no bearing on this appeal. PFR File, Tab 3 at 12-14. Under 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 despite the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980). To constitute new evidence, the information contained in the documents, not just the documents themselves, must have been unavailable despite due diligence when the record closed. Becker v. Department of Veterans Affairs, 112 M.S.P.R. 507, ¶ 8 (2009); 5 C.F.R. § 1201.115(e). Moreover, the Board will not grant a petition for review based on new evidence absent a showing that it is of sufficient weight to warrant an outcome different from that of the initial decision. Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980). The first set of documents the appellant presents for the first time on review is a January 2018 email, listing 28 agency whistleblowers from around the country, providing a limited explanation of their whistleblowing, and recommending which might be a good fit for inclusion in the agency’s peer-to- peer whistleblower mentor program. PFR File, Tab 1 at 26-39. Although all20 names are redacted from the document, the appellant argues that this was a message to agency leadership from a Whistleblower Specialist within the agency’s Office of Accountability and Whistleblower Protection. Id. at 19-22. The second set of documents is a set of emails dated September 2019, a year after OSC closed out the reprisal claim at issue in this appeal. Id. at 41-56. Although many names throughout these documents are also redacted, the appellant asserts that this document establishes the individuals involved in the first set of documents. Id. at 21-22. The appellant argues that the January 2018 and September 2019 documents, combined, show that numerous agency officials disfavored him. Id. at 21. The third set of documents the appellant presents for the first time on review is a series of May 2018 emails, many of which also have names redacted. Id. at 58-61. According to the appellant, these documents show that senior leadership within the agency knew of the fact-finding inquiry involving the appellant. Id. at 22. The fourth and final set of documents the appellant attaches to his petition consists of email exchanges between the agency’s representative in this appeal and a hearing witness. Id. at 22, 63-68. Generally speaking, these exchanges include the representative informing the witness that he may be called to testify, the witness indicating that he did not want to testify and did not think he had anything of value to add to the appeal, and then the representative eventually indicating that this potential witness would not need to testify. Id. at 63-68. According to the appellant, these exchanges show that the agency’s representative had inappropriate contact with this potential witness that the representative failed to disclose to the administrative judge. Id. at 22-24. After reviewing all these documents, we find that the appellant has not shown that any of the evidence presented for the first time on review is both new and material. Even if we were to find that the information contained in these documents was previously unavailable, the information would not alter our21 conclusions regarding the agency’s burden for the nonselections or the appellant’s burden for the alleged hostile work environment. They also do not persuade us that the agency’s representative engaged in any improprieties. NOTICE OF APPEAL RIGHTS5 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.22 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case, and 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 on23 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or24 other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 25 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.26	DeNofrio_James_M_PH-1221-19-0038-W-1_Final_Order.pdf	2024-09-19	JAMES MICHAEL DENOFRIO v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-1221-19-0038-W-1, September 19, 2024	PH-1221-19-0038-W-1	NP
491	https://www.mspb.gov/decisions/nonprecedential/Garcia__Xanthe__M_SF-0714-18-0445-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD XANTHE MONETTE GARCIA , Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER SF-0714-18-0445-I-1 DATE: September 19, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Sheila Brown , North Hills, California, for the appellant. Maya Soloway , Los Angeles, California, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which sustained her removal. For the reasons discussed below, we GRANT the appellant’s petition for review. We REVERSE the initial decision’s findings regarding the agency’s removal action and find that the removal action is NOT 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). SUSTAINED as it is not in accordance with law. We AFFIRM the administrative judge’s findings regarding the suspension action. BACKGROUND In August 2002, the agency appointed the appellant to the excepted service position of Licensed Vocational Nurse with its Greater Los Angeles Healthcare System. Initial Appeal File (IAF), Tab 4 at 7, 133-34. On February 9, 2018, the agency issued the appellant a 14-day suspension based on charges of absence without leave and inappropriate conduct. Id. at 91-97. On February 26, 2018, it proposed her removal under the authority of 38 U.S.C. § 714 based on charges of failure to properly carry out [her] duties as Licensed Vocational Nurse (two specifications) and inappropriate conduct (one specification). Id. at 28-30. The appellant served the 14-day suspension beginning March 4, 2018, and returned to duty on March 18, 2018. Id. at 85-86. On March 21, 2018, the deciding official sustained the appellant’s removal, effective April 9, 2018. Id. at 21, 23-26. On April 13, 2018, the appellant filed the instant Board appeal challenging her 14-day suspension and removal. IAF, Tab 1. In an order summarizing the prehearing conference, the administrative judge notified the appellant that the Board does not have jurisdiction over suspensions of less than 15 days. IAF, Tab 20 at 2. Following a hearing on her removal appeal, the administrative judge issued an initial decision on August 27, 2018, sustaining the agency’s charges and the penalty of removal. IAF, Tab 24, Initial Decision (ID) at 10. On October 2, 2018, the appellant submitted a petition for review of the initial decision via e-Appeal, along with an explanation related to the untimely filing of her petition for review. Petition for Review (PFR) File, Tab 1 at 3-4. Concerning her reasons for requesting review, the appellant reargues that she did not commit the misconduct charged by the agency in its removal action and suggests that the administrative judge erred in analyzing the hearing testimony. Id. at 5-7. The agency has responded, requesting that the Board dismiss the2 appellant’s petition for review based on untimeliness, and arguing that she did not show any material factual error in the initial decision or any other criterion for granting a petition for review. PFR File, Tab 3. ANALYSIS We waive the time limit for the filing of the appellant’s petition for review. A petition for review generally must be filed within 35 days after the date of the issuance of the initial decision or, if the appellant shows that the initial decision was received more than 5 days after the initial decision was issued, within 30 days after the date the appellant received the initial decision. 5 C.F.R. § 1201.114(e). The Board will waive this time limit only upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g). The length of the delay is a factor that must be considered in every good cause determination, and a minimal delay favors a finding of good cause. See Walls v. Merit Systems Protection Board, 29 F.3d 1578, 1582 (Fed. Cir. 1994). To establish good cause for the untimely filing of a petition, a party must show that she exercised due diligence or ordinary prudence under the particular circumstances of the case. See Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184 (1980). To determine 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 shows a causal relationship to her inability to timely file her petition. See 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). We find that the extremely minimal nature of the delay, along with the appellant’s explanation for the delay, supports a finding of good cause in this case. The appellant concedes that she received the initial decision within 5 days3 of its issuance on August 27, 2018. ID; PFR File, Tab 1 at 3. Thus, her petition for review was due on October 1, 2018. 5 C.F.R. § 1201.114(e). The date of filing for pleadings filed via e–Appeal is the date of electronic submission. 5 C.F.R. § 1201.4(l). All pleadings filed via e–Appeal are time stamped with Eastern Time, but the timeliness of a pleading will be determined based on the time zone from which the pleading was submitted. 5 C.F.R. § 1201.14( l)(1). The appellant’s petition for review, submitted via e-Appeal on October 2, 2018, is time-stamped 03:10:47. PFR File, Tab 1. As her address of record at the time was in the Pacific Time Zone, we find that her appeal was submitted at 12:10:47 a.m. Pacific Time and, thus, was untimely by only 10 minutes. Furthermore, the appellant, who is represented by her union representative, stated that she filed her petition for review without the assistance of her union representative after her union representative informed her that she was having trouble accessing e-Appeal. IAF, Tab 8 at 3; PFR File, Tab 1 at 4. Although an appellant is generally responsible for any purported deficiencies related to her representation, see Reaves v. Department of Veterans Affairs , 92 M.S.P.R. 352, ¶ 7 (2002), we find that the appellant’s actions of submitting a petition for review herself via e-Appeal only 10 minutes after the deadline demonstrated due diligence under the circumstances. Accordingly, we find good cause for her untimely filing. If good cause has been demonstrated, the Board will determine whether the agency has shown it would be prejudiced by a waiver of the time limit. See Moorman, 68 M.S.P.R. at 63. The agency has neither indicated nor made any showing of prejudice caused by the 10-minute filing delay. PFR File, Tab 3 at 4. Therefore, we waive the time limit for the filing of the appellant’s petition for review.4 The agency’s removal action must be reversed. Appointments of medical professionals in the Veterans Health Administration are governed by 38 U.S.C. § 7401. Individuals appointed pursuant to 38 U.S.C. § 7401(3) are hybrid employees, which is a category of agency employees subject to both Title 38 and Title 5 of the United States Code. U.S. Department of Veterans Affairs v. Federal Labor Relations Authority , 9 F.3d 123, 126 (D.C. Cir. 1993); see James v. Von Zemenszky , 284 F.3d 1310, 1314 (Fed. Cir. 2002). Since the issuance of the initial decision in this case, the Board issued a precedential Opinion and Order in Richardson v. Department of Veterans Affairs, 2023 MSPB 1, ¶¶ 15-28, holding that the agency does not have the authority under 38 U.S.C. § 714 to remove a hybrid employee appointed under 38 U.S.C. § 7401(3). We reasoned that hybrid employees are covered by 38 U.S.C. § 7403(f)(3), which provides that “all matters relating to adverse actions . . . shall be resolved under the provisions of title 5 as though such individuals had been appointed under that title.” Id., ¶ 12 (quoting 38 U.S.C. § 7403(f)(3)). We find that the appellant was a hybrid employee appointed under 38 U.S.C. § 7401(3). Section (3) of 7401 includes “licensed practical or vocational nurses,” like the appellant, among other positions. 38 U.S.C. § 7401(3). Furthermore, the agency has consistently represented in its pleadings that the appellant was a Title 38 hybrid employee. IAF, Tab 4 at 7, Tab 14 at 5. We note that the legal authority cited in the appellant’s appointment Standard Form 50 (SF-50) was section (1) of 7401, as opposed to section (3) of 7401; however, we give little weight to this document for several reasons. IAF, Tab 4 at 131; see generally Grigsby v. Department of Commerce , 729 F.2d 772, 776 (Fed. Cir. 1984) (holding that “the SF-50 is not a legally operative document controlling on its face an employee’s status and rights”). First, section (1) of 7401 authorized the appointments of “physicians, dentists, podiatrists, optometrists, registered nurses, physician assistants, and expanded-function dental auxiliaries,” and there is no indication in the record that the appellant held any of these credentials. 385 U.S.C. § 7401(1) (September 2003); IAF, Tab 4 at 131. Rather, the SF-50 indicates that her appointment was to the position of Licensed Vocational Nurse, which is a position listed under section (3) of 7401. Id.; 38 U.S.C. § 7401(3) (September 2003). Furthermore, the Board generally lacks jurisdiction over the removal of a medical professional appointed under section (1) of 7401; instead, those medical professionals are afforded internal agency procedures. See 5 U.S.C. § 7511(b)(10); 38 U.S.C. § 7425(a)(8); Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1370 (Fed. Cir. 2001). Here, the agency notified the appellant of her Board appeal rights in its removal decision, IAF, Tab 4 at 24, and, as mentioned above, has conceded that she is a hybrid employee with Board appeal rights, id. at 4. Accordingly, we find no reason to develop the record further on this issue and conclude that the appellant was a h ybrid employee appointed under 38 U.S.C. § 7401(3). Thus, we find that the agency’s removal action in this case under the authority of 38 U.S.C. § 714 is not in accordance with law. See Richardson, 2023 MSPB 1, ¶¶ 12-29. An agency action that is not in accordance with law must be reversed by the Board. 5 U.S.C. § 7701(c)(2); Hamilton v. U.S. Postal Service , 58 M.S.P.R. 486, 488 (1993). The appellant need not show that the agency violated her constitutional due process rights or that the erroneous action was harmful, i.e., that it prejudiced her rights so that the outcome before the agency was likely affected. Hamilton, 58 M.S.P.R. at 488; Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 683-84 (1991); see also Richardson, 2023 MSPB 1, ¶¶ 30-32 (finding that the Board could not sua sponte convert a 38 U.S.C. § 714 removal appeal to a 5 U.S.C. chapter 75 removal appeal because it would be “inherently unfair”). Accordingly, we reverse the agency’s removal action.2 If the agency wants to take an adverse action against the appellant, it must do so in accordance with the procedures of chapter 75, as required by section 7403(f)(3). 2 Because we agree with the administrative judge that the Board lacks jurisdiction over a suspension that is not more than 14 days, our decision in this case does not disturb the agency’s suspension action. IAF, Tab 20 at 2; see 5 U.S.C. §§ 7512(2), 7513(d). 6 ORDER We ORDER the agency to cancel its removal action and to restore the appellant effective March 21, 2018. See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days after the date of this decision. We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, no later than 60 calendar days after the date of this decision. We ORDER the appellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, interest due, and/or other benefits, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision. 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). 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). 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 decision7 are attached. The agency is ORDERED to timely provide DFAS or NFC with all documentation necessary to process payments and adjustments resulting from the Board’s decision in accordance with the attached lists so that payment can be made within the 60-day period set forth above. NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO REQUEST ATTORNEY FEES AND COSTS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set forth at Title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal. NOTICE OF APPEAL 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 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.8 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 9 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 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. 420 (2017). If you have a representative in this case, and 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: 10 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 11 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.12 DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations DFAS BACK PAY CHECKLIST The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following checklist to ensure a request for payment of back pay is complete. Missing documentation may substantially delay the processing of a back pay award. More information may be found at: https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx. NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by vendor pay, not DFAS Civilian Pay. ☐1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the specific dates of the back pay period within the ticket comments. Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket comments as to why the documentation is not applicable: ☐2) Settlement agreement, administrative determination, arbitrator award, or order. ☐3) Signed and completed “Employee Statement Relative to Back Pay”. ☐4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐7) Outside earnings documentation. Include record of all amounts earned by the employee in a job undertaken during the back pay period to replace federal employment. Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also, include record of any unemployment earning statements, workers’ compensation, CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums, or severance pay received by the employee upon separation. Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment they may have received. The payroll office must collect the debt from the back pay award. The annual leave will be restored to the employee. Annual leave that exceeds the annual leave ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g). NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES Below is the information/documentation required by National Finance Center to process payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit Systems Protection Board, EEOC, and courts . 1.Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information describing what to do in accordance with decision. 2.The following information must be included on AD-343 for Restoration: a.Employee name and social security number. b.Detailed explanation of request. c.Valid agency accounting. d.Authorized signature (Table 63). e.If interest is to be included. f.Check mailing address. g.Indicate if case is prior to conversion. Computations must be attached. h.Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected (if applicable). Attachments to AD-343 1.Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium, etc. with number of hours and dates for each entitlement (if applicable). 2.Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts. 3.Outside earnings documentation statement from agency. 4.If employee received retirement annuity or unemployment, provide amount and address to return monies. 5.Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable) 6.If employee was unable to work during any or part of the period involved, certification of the type of leave to be charged and number of hours. 7.If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave to be paid. NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and required data in 1-7 above. The following information must be included on AD-343 for Settlement Cases: (Lump Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.) a.Must provide same data as in 2, a-g above. b.Prior to conversion computation must be provided. c.Lump Sum amount of Settlement, and if taxable or non-taxable. If you have any questions or require clarification on the above, please contact NFC’s Payroll/Personnel Operations at 504-255-4630.	Garcia__Xanthe__M_SF-0714-18-0445-I-1_Final_Order.pdf	2024-09-19	XANTHE MONETTE GARCIA v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0714-18-0445-I-1, September 19, 2024	SF-0714-18-0445-I-1	NP
492	https://www.mspb.gov/decisions/nonprecedential/Milich_Michael_A_DA-0752-20-0186-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MICHAEL A. MILICH, JR., Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER DA-0752-20-0186-I-1 DATE: September 19, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Charlotte Lester , Fort Sill, Oklahoma, for the appellant. Teresa Anne Robison , Esquire, Fort Sill, Oklahoma, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which affirmed his removal on a charge of conduct unbecoming a Federal employee. On petition for review, the appellant argues, among other things, that the agency failed to prove the charge, that his removal was excessive under the circumstances, and that the agency removed him in retaliation for his testimony in 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). a previous investigation. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). As noted above, the appellant asserted on review that he was removed in retaliation for his testimony in a previous agency investigation. Petition for Review (PFR) File, Tab 1 at 6. Although the appellant briefly mentioned retaliation below in two documents regarding settlement, the administrative judge’s order and summary of the prehearing conference summary states that the appellant did not raise any affirmative defenses. Initial Appeal File (IAF), Tab 9 at 8, Tab 10 at 43, Tab 18 at 4. Further, the appellant did not file any objections to the prehearing conference summary, even though the administrative judge warned the parties that the order and summary would become final if neither party filed objections as to the rulings, or the accuracy and completeness of the summary. IAF, Tab 18 at 1, 7. In Thurman v. U.S. Postal Service , 2022 MSPB 21, ¶¶ 17-18, the Board set forth a nonexhaustive list of factors for consideration when determining whether an appellant will be deemed to have waived or abandoned a previously raised2 affirmative defense.2 Here, consideration of those factors and the facts of this appeal leads us to conclude that the appellant abandoned before the administrative judge his affirmative defense of reprisal for participation in the previous investigation. Among other things, the appellant, who was represented below, did not thoroughly, clearly, or consistently raise his retaliation claim before the administrative judge; he did not object to the administrative judge’s prehearing conference summary stating that he was not raising any affirmative defenses despite being afforded the opportunity to do so; and there is no indication that the appellant’s presumptive abandonment of this affirmative defense was the product of confusing, misleading, or incorrect information provided by the agency or the Board. See Thurman, 2022 MSPB 21, ¶ 18. Therefore, we find that the appellant abandoned his affirmative defense before the administrative judge, and we thus discern no reason to address the claim on review. 2 Those factors include: (1) the thoroughness and clarity with which the appellant raised his affirmative defense; (2) the degree to which the appellant continued to pursue his affirmative defense in the proceedings below after initially raising it; (3) whether the appellant objected to a summary of the issues to be decided that failed to include the potential affirmative defense when he was specifically afforded an opportunity to object and the consequences of his failure were made clear; (4) whether the appellant raised his affirmative defense or the administrative judge’s processing of the affirmative defense claim in his petition for review; (5) whether the appellant was represented during the course of his appeal before the administrative judge and on petition for review, and if he was not, the level of knowledge of Board proceedings possessed by the appellant; and (6) the likelihood that the presumptive abandonment of the affirmative defense was the product of confusion, or misleading or incorrect information provided by the agency or the Board. Thurman, 2022 MSPB 21, ¶ 18. The list is not exhaustive, and none of the individual factors identified will be dispositive. Id. Instead, the applicability and weight of each factor should be determined on a case- by-case basis. Id. 3 NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and 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 any5 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s6 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of 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/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Milich_Michael_A_DA-0752-20-0186-I-1_Final_Order.pdf	2024-09-19	null	DA-0752-20-0186-I-1	NP
493	https://www.mspb.gov/decisions/nonprecedential/Bassett_MatthewSF-0752-20-0095-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MATTHEW BASSETT, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER SF-0752-20-0095-I-1 DATE: September 19, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jeff T. Schrameck , Esquire, Canton, Michigan, for the appellant. Joey Ann Lonjers , John Christie , and Shelby L. Stuntz , Long Beach, California, for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman Henry J. Kerner , Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which sustained his removal for misconduct. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED regarding the consistency of the penalty with those imposed upon other employees for the same or similar offenses, we AFFIRM the initial decision. BACKGROUND The appellant was a GS-12 Customs and Border Protection Officer (CBPO), stationed at the Los Angeles International Airport. Initial Appeal File (IAF), Tab 8 at 30. The appellant’s main duty was primary inspection, which involves inspecting and questioning individuals entering the United States and conducting a risk assessment to determine whether a traveler should be released or detained for further scrutiny. IAF, Tab 11 at 21-23; Hearing Transcript, Day 2 (Tr. 2) at 46-49 (testimony of the appellant). On August 5, 2019, the agency proposed the appellant’s removal based on one charge of “misuse of position” (fifteen specifications) and one charge of “creating the appearance of a conflict of interest” (eight specifications). IAF, Tab 9 at 53-58. Under the misuse of position charge, the agency specified that, while performing his CBPO duties on various dates between May 2014 and January 2019, the appellant solicited contact information from ten different female foreign nationals whom he was screening and subsequently contacted or2 attempted to contact them while off duty, entering into intimate relationships with three of them. Id. at 53-55. Under the creating the appearance of a conflict of interest charge, the agency specified that, with respect to seven of the ten women identified in the previous charge, the appellant variously allowed them to stay at his home, allowed them to use his home address on their applications for entry into the United States, bought them gifts, and sent them money. Id. at 55-56. After the appellant responded to the proposal, the agency issued a decision sustaining the charges in their entirety and removing the appellant effective October 24, 2019. IAF, Tab 8 at 30-47. The appellant filed a Board appeal, arguing that he did not commit actionable misconduct and contesting the penalty determination. IAF, Tab 1 at 4, 6. He raised no affirmative defenses.2 After a hearing, the administrative judge issued an initial decision affirming the appellant’s removal. IAF, Tab 40, Initial Decision (ID). She sustained both charges and all specifications, found that the agency established a nexus between those charges and the efficiency of the service, and found that the removal penalty was reasonable. ID at 14-24. The appellant has filed a petition for review, challenging the administrative judge’s penalty analysis. Petition for Review (PFR) File, Tab 3. The agency has filed a response. PFR File, Tab 5. ANALYSIS In an appeal of an adverse action under 5 U.S.C. chapter 75, the agency bears the burden of proving by preponderant evidence that its action was taken for such cause as would promote the efficiency of the service. MacDonald v. Department of the Navy , 4 M.S.P.R. 403, 404 (1980); 5 C.F.R. § 1201.56(a)(1) (ii). To meet this burden, the agency must prove its charge, establish a nexus 2 The administrative judge characterized the appellant’s consistency of the penalty argument as an affirmative defense. IAF, Tab 28 at 2-3, Tab 40, Initial Decision at 20, 24. As explained below, this characterization was inaccurate, and we modify the initial decision accordingly.3 between the charge and the efficiency of the service, and demonstrate that the penalty imposed was reasonable. Pope v. U.S. Postal Service , 114 F.3d 1144, 1147 (Fed. Cir. 1997). In this case, neither party has challenged the administrative judge’s findings that the agency proved its charges and established nexus. PFR File, Tab 3 at 5. These findings appear to be correct on their face, and we will not revisit them on review. See 5 C.F.R. § 1201.115 (stating that the Board normally will consider only issues raised in a timely filed petition or cross petition for review). Accordingly, the only remaining issue is penalty. Because all of the agency’s charges are sustained, the Board’s authority to review the penalty is limited. Cantu v. Department of the Treasury , 88 M.S.P.R. 253, ¶ 4 (2001). Specifically, the Board reviews 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. Douglas v. Veterans Administration , 5 M.S.P.R. 280, 306 (1981). In determining whether the selected penalty is reasonable, the Board gives due deference to the agency’s discretion in exercising its managerial function of maintaining employee discipline and efficiency, recognizing that the Board’s function is not to displace management’s responsibility but to assure that management judgment has been properly exercised. Id. at 302. Thus, the Board will disturb an agency’s chosen penalty only if it finds that the agency failed to weigh relevant factors or that the agency’s judgment clearly exceeded the limits of reasonableness. Id. at 306. The Board has identified a nonexhaustive list of factors that are normally relevant for consideration in determining the appropriateness of a penalty. Id. at 305-06. In this case, the administrative judge found that the deciding official appropriately considered the relevant Douglas factors and arrived at a penalty within the tolerable limits of reasonableness. ID at 21-24. Specifically, the administrative judge agreed with the deciding official that the appellant’s offenses went to the heart of his authority as a CBPO to unilaterally decide whether to admit travelers to the United States or refer them for a secondary4 inspection. ID at 22. He agreed that the appellant’s misconduct was repeated over a long period of time; that it was serious in nature, particularly for a law enforcement officer; that the appellant was on clear notice that his actions were improper; that his actions resulted in a complaint of harassment; and that he refused even to acknowledge the inappropriateness of his behavior, much less express remorse for it. ID at 22-23. She found that the deciding official adequately considered the appellant’s evidence of proffered comparators and reasonably determined that this evidence did not provide a basis to reduce the penalty in this case. ID at 24. The administrative judge also agreed with the deciding official that there were some mitigating factors present, including the appellant’s otherwise satisfactory performance and 14 years of Federal civilian and military service without any prior discipline. ID at 23-24. However, she ultimately agreed with the deciding official that removal was appropriate under the totality of the circumstances. Id. On petition for review, the appellant disputes the administrative judge’s penalty analysis on three bases—the clarity of advance notice or warning about his conduct, the agency’s treatment of other similarly situated employees, and his rehabilitative potential. Regarding the clarity of advance notice or warning about the conduct at issue, the administrative judge found that, on June 20, 2016, the appellant received an informal counseling on the risks and perceptions of soliciting passenger contact information while serving in an armed uniformed capacity, and that on May 17, 2018, the appellant was subjected to an investigatory interview about his conduct, yet he continued to persist in it. ID at 4, 20-23; IAF, Tab 10 at 58-61, 133. On petition for review, the appellant argues that, far from warning him that his conduct was unacceptable, the June 20, 2016 letter of counseling informed him that his actions “appear[ed] to be more of an issue of questionable judgment than a violation of any section of the Table of Offenses,” and for that reason, the inquiry into his conduct was closed at that time without any disciplinary action.5 PFR File, Tab 3 at 12-14; IAF, Tab 10 at 133. Essentially, he argues that the agency turned around and removed him for conduct that it had previously informed him was not a chargeable offense. PFR File, Tab 3 at 12-14. As an initial matter, we note that the agency’s characterization of the appellant’s conduct as not being “a violation of any section of the Table of Offenses” is not particularly probative regarding whether it viewed his behavior as rising to the level of a chargeable offense. The agency’s Table of Offenses and Penalties expressly states that it is a guide for assessing appropriate penalties for common types of misconduct and “[t]he absence of a specific offense covering an act does not mean that such an act is condoned, permissible, or would not result in disciplinary or adverse action.” IAF, Tab 11 at 4. It would appear that the agency’s reference to its Table of Offenses and Penalties in the June 20, 2016 counseling was intended to convey that soliciting the contact information of a foreign national upon the completion of inspection and subsequently meeting with her did not fall under any category of misconduct listed on the Table.3 In any event, we do not think that a reasonable person would have taken this letter as a green light to continue with such conduct in the future; at a minimum, it should have served as a warning to the appellant that he was risking disciplinary action. IAF, Tab 10 at 133. Regarding the May 17, 2018 investigatory interview, the appellant appears to argue that, although he was under investigation, he continued to operate under the parameters of the June 20, 2016 letter that informed him that his conduct was not subject to discipline. PFR File, Tab 3 at 14. He also points out that he stopped soliciting passenger contact information after receiving an agency cease and desist letter on May 9, 2019. Id.; IAF, Tab 27 at 57. However, as explained above, we think that a reasonable person in the appellant’s position would have 3 This appears to have been incorrect. The appellant’s actions as described in the June 20, 2016 letter would seem to give the appearance of a conflict of interest or violation of the agency’s ethical standards of conduct. IAF, Tab 10 at 133, 137-39, Tab 11 at 18.6 taken the June 20, 2016 letter as a warning to cease the conduct at issue rather than an invitation to do more of the same. Furthermore, although the appellant may have stopped compounding his misconduct after the agency gave him an explicit written cease and desist order, he has still not given an adequate explanation for his continued misbehavior leading up to that order. We simply cannot believe that the appellant genuinely thought that it was acceptable for him to solicit the contact information of three additional women after May 17, 2018, when he was interrogated for more than an hour about similar behavior by the Office of Professional Responsibility. IAF, Tab 9 at 55, Tab 15. Far from showing that lack of notice is a mitigating penalty factor, the appellant demonstrated that he is willing to test the boundaries of acceptable conduct and engage in “questionable behavior” right up to the line where it crosses into actionable misconduct. PFR File, Tab 3 at 12-14; IAF, Tab 10 at 133. The fact that the appellant misjudged that line is attributable to his own disregard for the management inquiry and investigation that would have been sufficient to put a reasonably prudent person on notice that the continued solicitation of passenger contact information would likely lead to disciplinary action. We agree with the administrative judge that the appellant was on reasonably clear notice, at least since June 20, 2016, that the charged misconduct could result in discipline.4 Regarding comparator evidence, the appellant argued below that the removal penalty could not be supported because the agency treated him differently than other individuals who committed similar misconduct. IAF, Tab 26 at 7, 21-24. The administrative judge characterized this consistency of the penalty argument as an affirmative defense, and she analyzed it as such in her 4 Even prior to June 20, 2016, the appellant should have been aware that it was improper for him to solicit, for private use, the personal contact information of foreign nationals whom he was inspecting. See Flanagan v. Department of the Army , 44 M.S.P.R. 378, 382 (1990 ) (stating that an agency is under no obligation to affirmatively advise an employee against participating in an action that the employee knows or should know constitutes serious misconduct).7 initial decision. IAF, Tab 28 at 2-3; ID at 21, 24. However, an argument of inconsistent penalties that does not involve allegations of discrimination is not an affirmative defense. Vargas v. U.S. Postal Service , 83 M.S.P.R. 695, ¶ 9 (1999). Although an appellant effectively bears a burden of production on this issue, the ultimate burden of proving the reasonableness of the penalty is always with the agency. See 5 U.S.C. § 7513(a); Miskill v. Social Security Administration , 863 F.3d 1379, 1387 & n.2 (Fed. Cir. 2017); 5 C.F.R. § 1201.56(b)(1). Furthermore, after the initial decision in this appeal was issued, the Board issued a precedential decision in Singh v. U.S. Postal Service , 2022 MSPB 15, substantially revising its approach to the consistency of the penalty issue. For these reasons, we modify the administrative judge’s analysis to apply the correct standard. In her initial decision, the administrative judge found that none of the appellant’s seven proffered comparators were similarly situated for purposes of a consistency of the penalty analysis. ID at 21; IAF, Tab 26 at 21-23. Specifically, she found that most of the comparators were from different geographic regions than the appellant and that none of them had the same proposing or deciding official. ID at 21. She also found that several of the cases were resolved by resignation or settlement and that the misconduct and surrounding circumstances in those cases were less egregious than they were in this case. Id. On petition for review, the appellant disputes the administrative judge’s analysis, arguing that the agency meted out lesser discipline to other individuals with similar misconduct.5 PFR File, Tab 3 at 15-16. Having independently reviewed the comparator evidence, we find insufficient basis to conclude that any of the proffered comparators were similarly situated to the appellant. Regarding the first proffered comparator, the record 5 Among other things, the appellant argues that none of the proffered comparators had previously been led to believe by the agency, as he was, that their conduct was permissible. PFR File, Tab 3 at 15-16. For the reasons explained above, we find this argument unavailing. 8 shows that the agency proposed his removal, but he resigned before the agency issued its final decision. IAF, Tab 9 at 6-10. We find that this does not constitute evidence of an inconsistent penalty because the option of resignation in the face of a proposed removal was equally open to the appellant. See Frank v. Equal Employment Opportunity Commission , 90 M.S.P.R. 458, ¶ 13 (2001) (“[E]mployees have a right to resign and agencies have a duty to honor and accept an employee’s resignation.”). The six remaining comparators, who received either reprimands or suspensions, were only charged with one instance of arguably similar misconduct, and for that reason, we find that the misconduct in their cases does not “closely resemble” the more than 20 instances of proven misconduct at issue in the instant appeal.6 IAF, Tab 9 at 11-41, 51-52; see Singh, 2022 MSPB 15, ¶ 13 (stating that the universe of proper comparators may vary from case to case but should be limited to those employees whose misconduct or other circumstances closely resemble those of the appellant). Nor do we find that other circumstances in those cases render them as proper comparators in this case. See Singh, 2022 MSPB 15, ¶ 13. Furthermore, even if some of these other cases were instructive on the issue of penalty, the consistency of the penalty is just one of many relevant factors to be considered in determining an appropriate penalty. Id. For the reasons explained in the initial decision, we agree with the administrative judge that the deciding official conscientiously considered the Douglas factors as a whole, including the comparator evidence, in arriving at his decision. ID at 24; Tr. 2 at 163-83 (testimony of the deciding official). Regarding the appellant’s rehabilitative potential, the administrative judge found that the appellant largely refused to take responsibility for his actions or 6 To the extent that some of these other employees were also charged with other offenses such as accepting gifts from travelers and using inappropriate language, we find that these matters are immaterial. The Board will not attempt to weigh the relative seriousness of various offenses in order to determine whether two employees who committed different acts of misconduct were treated disparately. Singh, 2022 MSPB 15, ¶ 17.9 acknowledge that his conduct was inappropriate. ID at 23; see Leftridge v. U.S. Postal Service, 56 M.S.P.R. 340, 347 (1993) (finding that the appellant’s rehabilitative potential was suspect because of his refusal to admit any responsibility or show remorse for his actions). The appellant disputes this finding on review. He argues that he admitted his actions and was honest and forthright during the investigative interviews and the Board proceedings, that he expressed remorse during the investigative interviews, and that he apologized in his reply to the notice of proposed removal. PFR File, Tab 3 at 16-18. The appellant also disagrees with the administrative judge that he used his job as a “personal dating service.” Id. at 17; ID at 19. He argues that, over the years, he obtained personal contact information from both male and female passengers, which mostly resulted in platonic relationships or no further contact at all. PFR File, Tab 3 at 17-18. We agree with the appellant that there is no definitive evidence that he lacked candor with the Board or with the agency investigators, although we find some of his explanations for his behavior to be suspect. In particular, we find it difficult to believe that the appellant’s repeated and unwanted messages to a female passenger as set forth in charge 1, specifications 8-10, were accidental, as he has maintained both during the agency proceedings and throughout his Board appeal. PFR File, Tab 3 at 11; IAF, Tab 8 at 40-41; Tr. 2 at 81-86 (testimony of the appellant). Furthermore, having reviewed the recordings of the investigatory interviews, we observe that the investigators had some difficulty eliciting complete and truthful answers from the appellant, for example, regarding whether he had attempted to gain passenger contact information for personal use after the initial investigative interview. IAF, Tab 14, April 11, 2019 Interview Recording, File 2 at 4:30. Although the appellant’s conduct during the investigative process may have been sufficient for him to avoid a further charge of falsification or lack of candor, we find that it does not speak strongly to his rehabilitative potential,10 especially when weighed against other evidence of record. Specifically, we agree with the appellant that, during his first investigative interview, he expressed embarrassment and remorse for his conduct. IAF, Tab 15, May 17, 2018 Interview Recording, File 1 at 25:40. However, these sentiments ring hollow in light of his resumption of precisely the same pattern of misconduct shortly thereafter. Furthermore, although the appellant apologized to the deciding official, he continued attempting to explain away his misbehavior as an outgrowth of being courteous toward travelers and incidental to his attractiveness to certain women. IAF, Tab 9 at 45. Considering the record as a whole, we find that the appellant has not provided a sufficient basis for us to disturb the administrative judge’s demeanor-based credibility determinations that the appellant largely failed to acknowledge the impropriety of his actions. ID at 23; see Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002) (holding that the Board must give deference to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing and may overturn such determinations only when it has “sufficiently sound” reasons for doing so). Finally, we acknowledge that the appellant may sometimes have obtained passenger contact information for reasons other than sexual interest. Even so, we do not think that it reflects favorably on his case that he solicited contact information from even more passengers than the Government is already aware of, regardless of his reasons for doing so. For these reasons, we find that the appellant has not provided a sufficient basis to disturb the administrative judge’s penalty analysis.11 NOTICE OF APPEAL RIGHTS7 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 7 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.12 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case, and 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 any13 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s14 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.8 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 15 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.16	Bassett_MatthewSF-0752-20-0095-I-1_Final_Order.pdf	2024-09-19	MATTHEW BASSETT v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-0752-20-0095-I-1, September 19, 2024	SF-0752-20-0095-I-1	NP
494	https://www.mspb.gov/decisions/nonprecedential/Martinson_Ernestina_D_DE-0752-23-0144-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ERNESTINA D MARTINSON, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER DE-0752-23-0144-I-1 DATE: September 19, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Peter Charles Rombold , Esquire, Junction City, Kansas, for the appellant. Gary Paul Chura , Esquire, Fort Leonard Wood, Missouri, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which sustained her chapter 75 removal for misuse of government property. On petition for review, the appellant reraises her affirmative defenses and reargues that the penalty of removal was excessive. She also argues that the administrative judge committed a procedural error by issuing the initial decision more than 6 months 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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). after the close of the record below.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). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. 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 The appellant relies on 5 C.F.R. § 9701.706, which applies only to appeals with the Board by covered Department of Homeland Security employees. 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.2 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 3 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 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. 420 (2017). If you have a representative in this case, and 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: 4 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, 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 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. 5 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.6	Martinson_Ernestina_D_DE-0752-23-0144-I-1_Final_Order.pdf	2024-09-19	ERNESTINA D MARTINSON v. DEPARTMENT OF DEFENSE, MSPB Docket No. DE-0752-23-0144-I-1, September 19, 2024	DE-0752-23-0144-I-1	NP
495	https://www.mspb.gov/decisions/nonprecedential/Ford_Frank_L_SF-0752-18-0703-I-2_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD FRANK L. FORD, Appellant, v. DEPARTMENT OF COMMERCE, Agency.DOCKET NUMBER SF-0752-18-0703-I-2 DATE: September 19, 2024 THIS ORDER IS NONPRECEDENTIAL1 Frank L. Ford , Army Post Office/Fleet Post Office, Europe, pro se. Ashley Geisendorfer , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member REMAND ORDER The appellant has filed a petition for review of the initial decision, which affirmed the agency’s removal action. For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the initial decision, and REMAND the case to the Western Regional Office for further adjudication in accordance with this Remand Order. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). BACKGROUND The appellant was the Chief Steward onboard the ship “Fairweather” with the agency’s National Oceanic and Atmospheric Administration (NOAA). Initial Appeal File (IAF), Tab 9 at 4-5. Following complaints made against the appellant by current and former subordinates, an outside organization conducted an investigation into the appellant’s alleged misconduct. Id. at 41. At the conclusion of the investigation, which included interviewing numerous individuals and reviewing documentation, the investigator found evidence supporting several complaints against the appellant. Id. at 41-57. Thus, on June 23, 2017, the Commanding Officer of the Fairweather proposed to remove the appellant based on one charge of conduct unbecoming. Id. at 36. The charge contained six specifications, setting out various incidents wherein the appellant allegedly exhibited disregard for the ship’s crew members and mistreated his staff. Id. at 36-37. For example, according to two specifications, the appellant instructed subordinates to bleach off expiration dates and serve expired food, and made comments such as “the crew didn’t deserve any snacks.” Id. at 36. Other specifications additionally set out that the appellant instructed the General Vessel Assistant (GVA) to be available to work on a day she was on leave, physically moved her out of the way on one occasion, and deliberately assigned her more work than she could complete while instructing other staff not to assist her. Id. at 37. The appellant provided both a written and oral reply to the charge. IAF, Tab 8 at 90-94, Tab 9 at 5, 11-33. Following the appellant’s reply, the Commanding Officer of NOAA’s Center-Pacific Marine Operations issued a decision affirming the charge and removing the appellant, effective July 25, 2017. IAF, Tab 9 at 5-10. The appellant challenged this action before the Board, alleging discrimination based on age and race, whistleblower retaliation, and a due process violation. IAF, Tab 2 at 2. The administrative judge dismissed the appeal in October 2018, without prejudice to refiling, at the appellant’s request. IAF, Tab 26, 29, Initial2 Decision. After automatically refiling the appeal in December 2018, the administrative judge canceled the hearing as a sanction for the appellant’s failure to file timely prehearing submissions. Refiled Appeal File (RAF), Tab 5 at 2, Tabs 6-7, Tab 19, Initial Decision (ID) at 1, 3-4. The administrative judge issued an initial decision on the written record affirming the agency’s removal action. ID at 1. The administrative judge sustained all six of the agency’s specifications, crediting several individuals’ sworn statements over the appellant’s statements. ID at 7-19. The administrative judge found that the appellant had not proved his allegations of due process violations or discrimination based on race or age. ID at 20-27. Additionally, the administrative judge held that the appellant failed to establish his claim of whistleblower retaliation, finding that the appellant failed to prove he made a protected disclosure that was a contributing factor in a personnel action. ID at 27-31. The administrative judge further found a nexus between misconduct and the efficiency of the service. ID at 19-20. Finally, the administrative judge determined that the penalty of removal was within the tolerable bounds of reasonableness. ID at 31-34. The appellant has filed a petition for review, arguing that the agency failed to prove its charge and specifications. Petition for Review (PFR) File, Tab 11 at 12-14. In doing so, he cites the testimony of some of his listed witnesses, who he argues would have rebutted the charge. Id. at 12-13; RAF, Tab 6 at 6-7. He additionally repeats his arguments of a due process violation and whistleblower retaliation and attaches numerous documents to his petition. PFR File, Tab 11 at 4-61. The agency has responded to the appellant’s petition for review. PFR File, Tab 14. 3 DISCUSSION OF ARGUMENTS ON REVIEW The administrative judge abused her discretion in canceling the appellant’s requested hearing. The administrative judge here canceled the hearing and issued a decision on the written record. RAF, Tab 5 at 2. The appellant asserts on review that several of his witnesses did not testify. PFR File, Tab 11 at 12-13. For example, he argues that he listed as witnesses two Chief Cooks who were present during his discussion with the GVA, in which the agency alleged he improperly instructed her to be available to work on her days off. PFR File, Tab 11 at 12-13; IAF, Tab 9 at 37; RAF, Tab 6 at 6-7. According to the appellant, the Chief Cooks would have testified that the GVA “agreed to the deal” that she be available to work if needed, but “no one ever called them to get their side of the story.” PFR File, Tab 11 at 12. As another example, the appellant asserts that he listed the Executive Officer of the Fairweather as a witness to “attest to the fact that [he] created [the GVA’s] work load and not [the appellant].”2 Id. at 13; RAF, Tab 6 at 6-7, Tab 16 at 5, 7-8, 10-13. His argument is in response to the administrative judge’s finding that the agency proved its specification that he assigned an unreasonable amount of work to the GVA, and that the appellant failed to prove that the Executive Officer was responsible for the GVA’s workload. ID at 18-19; IAF, Tab 9 at 37. We interpret the appellant’s arguments regarding these witnesses liberally, particularly in light of his pro se status. See Melnick v. Department of Housing & Urban Development , 42 M.S.P.R. 93, 97-98 (1989) (explaining that an 2 Contrary to the appellant’s claim on review, it does not appear that he listed the Commanding Officer of the Fairweather as a witness to attest to these same alleged facts. PFR File, Tab 11 at 13; RAF, Tab 6 at 6-7, Tab 16 at 5, 7-8, 10-13. He identified as witnesses the current Executive Officer as well as someone he indicated previously holding the position. IAF, Tab 9 at 53; RAF, Tab 6 at 6-7, Tab 16 at 7. On remand, the administrative judge should get clarification from the parties as necessary and make determinations as to whether to grant each party’s request for any particular witness. See 5 C.F.R. § 1201.41(b)(8), (10) (reflecting the authority of the administrative judge to rule on witness lists and order the production of witnesses whose testimony would be relevant, material, and nonrepetitious).4 administrative judge is expected to interpret pleadings liberally, and that parties without the benefits of legal counsel are not required to plead the issues with the precision of an attorney), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table). Thus, although not framed as a denial of his right to a hearing, we view his arguments regarding the lack of witness testimony as raising this issue on review. See Siman v. Department of the Air Force , 80 M.S.P.R. 306, ¶¶ 6-7 (1998) (remanding an appeal for a hearing if requested because the administrative judge did not fully advise the appellant of his options of a hearing by telephone or video, even though the appellant did not specifically raise hearing-related issues on review). Under the facts of this case, we find that the administrative judge abused her discretion by canceling the hearing, and we thus vacate the initial decision. An administrative judge has the authority to sanction a party when necessary to serve the ends of justice. Heckman v. Department of the Interior , 106 M.S.P.R. 210, ¶ 8 (2007), overruled on other grounds by Garcia v. Department of Agriculture , 110 M.S.P.R. 371, ¶¶ 8-12 (2009); 5 C.F.R. § 1201.43. That authority includes the right to sanction a party for failure to comply with an order. Heckman, 106 M.S.P.R. 210, ¶ 8. An appellant’s right to a hearing, however, should not be denied as a sanction absent extraordinary circumstances. Id.; 5 C.F.R. § 1201.43(e) (reflecting that an administrative judge may cancel a hearing for contumacious conduct or conduct prejudicial to the administration of justice). Indeed, there is a strong policy consideration that an appellant receive a hearing on the merits of a case. Siman, 80 M.S.P.R. 306, ¶ 6. A single failure to comply with an order is not sufficient to show a lack of due diligence, negligence, or bad faith in the appellant’s compliance with an administrative judge’s orders, so as to justify a drastic sanction such as precluding the presentation of evidence at a hearing. Sims v. U.S. Postal Service , 88 M.S.P.R. 101, ¶ 7 (2001); see Hart v. Department of Agriculture , 81 M.S.P.R. 329, ¶ 7 (1999) (explaining that an appellant’s inadvertent failure to comply with5 an administrative judge’s order is not an extraordinary circumstance that warrants the extreme sanction of the denial of a hearing). The administrative judge originally set a deadline in October 2018 for the parties to submit prehearing submissions. IAF, Tab 22 at 2-3. However, she later acknowledged the appellant’s request for an “extension on [his] case” because he was working in Iraq without reliable mail service or internet until December 21, 2018. IAF, Tabs 26, 28. She issued an initial decision dismissing the appeal without prejudice, with an automatic refiling date of December 14, 2018. IAF, Tab 29. On the same day, she issued an order that, after the automatic refiling of the appeal, the parties were to file prehearing submissions by December 17, 2018. IAF, Tabs 28-29. She did not explain why she set the prehearing submission deadline 4 days before the appellant was due to return from Iraq and neither the initial decision dismissing the appeal without prejudice, nor the order of the same date stated that the parties could object to the December 17, 2018 deadline.3 After the appeal was automatically refiled, the agency timely submitted prehearing submissions on December 17, 2018. RAF, Tab 3. The appellant, however, did not. On December 21, 2018, the same day the appellant returned from Iraq, the administrative judge issued an order to the parties advising them that, in the event of a Government shutdown, the prehearing conference date was rescheduled for early January, and the hearing would “be deemed postponed.” RAF, Tab 4. She did not set a new date for the hearing. Id. Many Government operations were, in fact, shutdown from December 22, 2018, to January 26, 2019, including the Board’s adjudicatory function. RAF, Tab 7 at 2. On May 3, 2019, the administrative judge issued an order setting a date for the record to close. RAF, Tab 5 at 2-3. She stated that because the appellant did not file prehearing submissions or request witnesses, “there is no justification for a hearing to be rescheduled.” Id. at 2. Three weeks later, the appellant filed a 3 The administrative judge made general statements regarding the parties’ ability to object in other orders, but did not specifically advise them in the orders at issue here. IAF, Tab 3 at 3; RAF, Tab 2 at 1.6 motion to extend his time to file his prehearing submissions. RAF, Tab 6. He stated under penalty of perjury that he missed the December 17, 2018 deadline because he was in Iraq until December 21, 2018. RAF, Tab 6 at 4-5; Edwards v. Department of Veterans Affairs , 111 M.S.P.R. 297, ¶¶ 4, 6 (2009) (stating that if unrebutted, an affidavit or a declaration made under penalty of perjury proves the facts asserted therein). With his motion, he requested exhibits and provided a witness list.4 Id. at 6-7. The administrative judge subsequently found no good cause for the appellant’s untimely filing and declined to reschedule the hearing. RAF, Tab 7 a 2. We disagree that the appellant failed to show good cause for his delay. While we acknowledge his 5-month delay was lengthy, the circumstances as a whole reflect that it was due to his confusion. Specifically, as to his failure to submit his prehearing submissions by December 17, 2018, the appellant was out of the country until December 21, 2018, and his pleadings reflect his mistaken belief that his prehearing submissions were due on that later date. RAF, Tab 6 at 3, 5. This confusion was caused, in part, by the administrative judge’s order scheduling the December 17, 2018 deadline because, in the same order, she acknowledged that the appellant was “overseas and without reliable communication until December 21, 2018.” IAF, Tab 28 at 2. Further, the administrative judge’s order on December 21, 2018, regarding a potential Government shutdown led the appellant to believe, according to his sworn statement, that “[his] case was closed.” RAF, Tab 6 at 3. The circumstances here are similar to those in Hart, 81 M.S.P.R. 329, ¶¶ 2-3, 5-7, in which the Board found that an administrative judge abused her discretion when she canceled an appellant’s requested hearing due to the appellant’s failure to make herself available for a scheduled prehearing 4 The appellant subsequently filed a second submission titled Prehearing Submissions. RAF, Tab 16 at 4. Although not entirely clear, based on the timing, it appears that he intended this document and its attachments to be his close-of-record submission. RAF, Tab 14 at 1, Tab 16.7 conference. The Board reasoned the appellant mistakenly but inadvertently relied on statements by the agency representative that the administrative judge would likely dismiss the case without prejudice, thus presenting good cause for her failure to comply with administrative judge’s order. Id., ¶¶ 6-7. For the same reasons, we find that the appellant’s misunderstandings of the process, created in part by the administrative judge’s orders, are good cause for his failure to submit prehearing submissions by December 17, 2018, and thereafter. Further, following the administrative judge’s December 21, 2018 order advising of a potential Government shutdown, no activity took place on the case until she issued the May 3, 2019 order that canceled the hearing. RAF, Tab 5. The administrative judge did not provide the appellant with either a show cause order or some other opportunity to explain his failure to meet the prehearing submission deadline. Id. Therefore, we cannot agree with the administrative judge that the appellant’s failure to follow a single order, i.e., his delay in filing prehearing submissions until May 24, 2019, justified the extraordinary sanction of canceling the hearing. RAF, Tab 6; see Sims, 88 M.S.P.R. 101, ¶ 8 (citing the lack of a show cause order as further support for the determination that an appellant’s failure to participate in a single prehearing conference was insufficient to justify the sanction of cancelation of the hearing). The appellant on review attached numerous documents, including the results of two polygraph examinations, a statement from a prior member of the Fairweather refuting the agency’s charges, performance reviews, a letter of reprimand against the GVA who made allegations against the appellant, and various email threads. PFR File, Tab 11 at 16-61. On remand, the administrative judge may allow the parties an opportunity to supplement the record with this and other evidence if she determines doing so is appropriate. 8 After the record closes in the remanded appeal, the administrative judge should issue a new initial decision. The appellant on review denies each of the specifications and argues that his conduct was not unbecoming. PFR File, Tab 11 at 12-14. The administrative judge held that the agency proved each of the specifications by preponderant evidence. ID at 7-19. Because we are vacating the initial decision and remanding this appeal for a hearing, we need not reach the question of whether the agency sufficiently met its burden. On remand, the administrative judge should make new findings regarding the appellant’s affirmative defenses. Due process and harmful error The appellant on review repeats his argument from below that, because his ship’s crew was instructed not to contact him, he was denied due process in obtaining statements that could aid his defense. PFR File, Tab 11 at 14; RAF, Tab 18 at 5. The administrative judge held that the appellant failed to meet his burden of proving a due process violation; he was, rather, provided the requisite notice and opportunity to respond to the proposed removal. ID at 20-23. Taking as true the facts alleged by the appellant, we agree with the administrative judge. An agency’s failure to provide a tenured public employee with an opportunity to present a response, either in person or in writing, to an appealable agency action that deprives him of his property right in his employment constitutes an abridgement of his constitutional right to minimum due process of law, i.e., prior notice and an opportunity to respond. Cleveland Board of Education v. Loudermill , 470 U.S. 532, 546 (1985). However, at the predecisional stage, an employee does not have a due process right to a hearing or a formal investigation. See Mercer v. Department of Health & Human Services , 772 F.2d 856, 859 (Fed. Cir. 1985) (finding that the denial of a predecisional hearing did not implicate the constitutional issue in Loudermill); Alsedek v. Department of the Army , 58 M.S.P.R. 229, 240-41 (1993) (determining that an9 agency did not violate an appellant’s due process rights when it elected to conduct an informal, rather than a formal, investigation). By analogy, we find that there is no due process right to interview witnesses before responding to a proposed adverse action. Instead, minimum due process generally requires prior notice and an opportunity to respond to an appealable agency action. Ronso v. Department of the Navy, 122 M.S.P.R. 391, ¶¶ 12-13 (2015) (declining to find a due process violation when a deciding official delegated the task of receiving oral replies to a designated official). The appellant here made both written and oral replies to the proposed removal. IAF, Tab 9 at 5, 15-17. Moreover, the notice of proposed removal here specifically set out the charge and specifications used in disciplining the appellant. Id. at 36-40. Accordingly, we find that, as a matter of law, the agency provided the appellant the requisite minimum due process. When there is no dispute of material fact and the outcome of the appeal is a matter of law, the hearing may be limited to an opportunity to present oral argument on the dispositive legal issue. Wible v. Department of the Army , 120 M.S.P.R. 333, ¶ 8 (2013). Therefore, on remand, unless the appellant raises new factual allegations that present a due process concern, the administrative judge may limit him at the hearing to presenting only oral argument on this issue. The administrative judge also found that the appellant failed to prove harmful error regarding the agency’s alleged instructions to the crew not to communicate with him because he did not identify any law, rule, or regulation the agency violated, or explain how any error was harmful. ID at 23 n.4. Although not entirely clear, we interpret the appellant’s arguments on review as re-raising this harmful error claim. PFR File, Tab 11 at 14. It does not appear that the administrative judge gave notice of how to prove harmful error below. RAF, Tab 5 at 3-13. The Board has consistently required administrative judges to apprise an appellant of the applicable burdens of going forward with the evidence and of proving a particular affirmative defense, as well as the kind of evidence10 the appellant is required to produce to meet his burden.5 Erkins v. U.S. Postal Service, 108 M.S.P.R. 367, ¶ 8 (2008). Therefore, on remand, the administrative judge must provide the appellant with this notice so that he can attempt to meet his burden. Whistleblower reprisal The appellant on review re-raises his argument that his removal was retaliation for his disclosure regarding the disappearance of $15,000 worth of meat. PFR File, Tab 11 at 14. The administrative judge held that the appellant failed to establish that he made a protected disclosure that was a contributing factor in his removal. ID at 27-30. She alternatively found that, even if the appellant could establish his prima facie case, the agency met its burden to prove by clear and convincing evidence that it would have removed the appellant absent any protected disclosure. ID at 30-31. On remand, the administrative judge should make new findings on this affirmative defense following the close of the record, consistent with the guidance below. In an adverse action appeal such as this one, an appellant’s claim of whistleblower reprisal is treated as an affirmative defense. Campbell v. Department of the Army , 123 M.S.P.R. 674, ¶ 11 (2016). In such instances, once the agency proves its adverse action case by a preponderance of the evidence, the appellant must show by preponderant evidence that he engaged in whistleblowing activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8) and that the disclosure was a contributing factor in the agency’s personnel action. Id. A protected disclosure is a disclosure of information that the 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). The 5 In Thurman v. U.S. Postal Service , 2022 MSPB 21, ¶ 17, we held that remand is not always necessary when an administrative judge fails to provide such notice. Because we are remanding here, in any event, for the administrative judge to hold the appellant’s requested hearing, this finding in Thurman does not impact our remand determination.11 record below contains a copy of emails the appellant sent the then-Executive Officer of the Fairweather, and also forwarded to another agency official, in February 2015, in which he reported that a Chief Cook had a homeless shelter pick up approximately four to five pallets of meat because the Chief Cook did not believe the ship needed it.6 IAF, Tab 7 at 64-65. The appellant stated that he valued the meat “conservative[ly] . . . in excess of Five thousand dollars,” and referred to documentation “of the shelf life of many of the meats that were in the freezer.” Id. at 65. During the proceedings below, the appellant alleged that the value of the lost meat was actually at or above $15,000. RAF, Tab 18 at 4. According to the appellant, the Chief Cook stated that he donated the meat because it was not fit for human consumption. RAF, Tab 18 at 4. The appellant alleged below that the Chief Cook’s claim that the meat was unfit was incorrect. Instead, “the meat was less than 90dyas old at the oldest. cryo-vaced and in the freezer the whole time.” Id. (spelling and punctuation as in original). He also questioned the Chief Cook’s claim that the meat was, in fact, donated. Id. at 4. In March 2017, the appellant forwarded his original emails to the individual in charge of the outside investigation that led to his removal, as well as to an agency employee assigned to assist in that investigation. IAF, Tab 7 at 62-64, 113. The administrative judge analyzed the appellant’s emails as a potential disclosure of a violation of law, rule, or regulation, but was unpersuaded. She found that the appellant failed to identify any law, rule, or regulation he reasonably believed was violated. ID at 29-30. To the extent that the administrative judge determined that the appellant was required to identify by citation the provision that he believed the agency violated, that was incorrect. Langer v. Department of the Treasury , 265 F.3d 1259, 1266 (Fed. Cir. 2001). Rather, it is sufficient if his “statements and the circumstances surrounding the making of those statements clearly implicate an identifiable violation of law, rule, 6 The Executive Officer at the time was not the same Executive Officer who was in charge of the Fairweather at the time of the appellant’s removal. IAF, Tab 7 at 64.12 or regulation.” Id. On remand, the administrative judge should consider whether the appellant met his burden under this standard. The administrative judge also held that the appellant failed to prove that giving away the meat in question was a gross waste of funds. ID at 29-30. She reasoned that the appellant’s disclosure did not evidence an expenditure by the Government. Id. To the extent she imposed a requirement that a disclosure of a gross waste of funds must reflect a cost—versus a loss—to the Government, her reasoning was incorrect. This requirement is not imposed either by statute or case law. 5 U.S.C. § 2302(b)(8)(A); see MacGowan v. Environmental Protection Agency, 119 M.S.P.R. 9, ¶ 7 (2012) (finding an appellant made a nonfrivolous allegation that he disclosed a gross waste of funds regarding the agency’s risk of losing funds obligated to contracts without ordering work). Nonetheless, we observe that, on remand, the appellant must prove that the $5,000 to $15,000 value of the lost meat was a more than debatable expenditure that is significantly out of proportion to the benefit reasonably expected to accrue to the Government. Id. The appellant below argued that the act of donating the meat could have affected the ship’s ability to complete its mission because the ship had “no food at all.” RAF, Tab 18 at 4. The administrative judge determined that the appellant’s disclosure did not evidence gross mismanagement. ID at 30. She reasoned that the appellant needed to disclose “such serious errors by the agency that a conclusion the agency erred is not debatable among reasonable people.” Id. (quoting White v. Department of the Air Force , 391 F.3d 1377, 1382 (Fed. Cir. 2004)). However, in Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶ 9 (2015), the Board recognized that the legislative history of the Whistleblower Protection Enhancement Act of 2012 criticized this language from White as potentially requiring an appellant to prove that the misconduct occurred, as opposed to that he reasonably believed it occurred. On remand, the administrative judge should apply the appropriate standard, i.e., whether the13 appellant met his burden to prove that he reasonably believed the loss of the meat evidenced the kinds of misconduct listed in section 2302(b)(8). Webb, 122 M.S.P.R. 248, ¶ 9. Turning to the contributing factor requirement, the administrative judge found that the appellant failed to prove that any disclosure he made was a contributing factor in his removal. ID at 30. She reasoned that more than 2 years had passed between the appellant’s removal and his disclosure. Id. One way to establish contributing factor is the knowledge/timing test. Wadhwa v. Department of Veterans Affairs , 110 M.S.P.R. 615, ¶ 12, aff'd per curiam , 353 F. App'x 435 (Fed. Cir. 2009). Under that test, an appellant can prove the contributing factor element through evidence showing that the official taking the personnel action knew of the disclosure and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action. Id. An appellant also may satisfy the knowledge element of the knowledge/timing test by proving that the official taking the action had constructive knowledge of the protected disclosure, even if the official lacked actual knowledge. Nasuti v. Department of State, 120 M.S.P.R. 588, ¶ 7 (2014). An appellant may establish constructive knowledge by showing that an individual with actual knowledge of the disclosure influenced the official accused of taking the retaliatory action. Id. In applying the test here, the administrative judge appears to have considered only the appellant’s February 2015 disclosure. However, as discussed above, the appellant re -disclosed this same information in March 2017, within months of when the agency proposed his removal in June 2017 and issued its removal decision in July 2017. IAF, Tab 7 at 62-64, Tab 9 at 5, 36. Thus, on remand, if the administrative judge finds that the appellant made a protected disclosure, she should address not only whether the appellant proved contributing factor as to his original disclosure, but also whether he did so as to his March 2017 disclosure. If the administrative judge concludes that the appellant did not14 prove contributing factor under the knowledge/timing test, she should consider other evidence of contributing factor, if appropriate, such as evidence pertaining to the strength or weakness of the agency’s reasons for taking the personnel action, whether the whistleblowing was personally directed at the proposing or deciding officials, and whether these individuals had a desire or motive to retaliate against the appellant. Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 15 (2012). . On remand, if the administrative judge finds that the appellant failed to prove his prima facie case of whistleblower reprisal, she should not go on to determine whether the agency proved by clear and convincing evidence that it would have, absent his disclosure, removed the appellant. The Board may not proceed to the clear and convincing evidence test unless it has first determined that the appellant established his prima facie case of whistleblower retaliation. Clarke v. Department of Veterans Affairs , 121 M.S.P.R. 154, ¶ 19 n.10 (2014), aff’d per curiam , 623 F. App’x 1016 (Fed. Cir. 2015). We make no findings here as to whether the appellant can prove his prima facie case. We also do not determine whether, if he does, the agency can prove its affirmative defense. Those decisions can only be made in the first instance by the administrative judge after the hearing the appellant requested has taken place. Discrimination based on race and age Additionally, the appellant below alleged discrimination based on age and race. IAF, Tab 18 at 4. Following the issuance of the initial decision in this case, the Board issued Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 20-25, 30, which clarified the proper analytical framework to be applied to affirmative defenses of Title VII discrimination. Under Pridgen, the appellant bears the initial burden of proving by preponderant evidence that the prohibited consideration was a motivating factor in the contested personnel action. Pridgen, 2022 MSPB 31, ¶ 40. An appellant may prove a claim of discrimination under Title VII by a combination of direct or indirect evidence, including suspicious15 timing, statements, or actions by agency officials from which an inference of discrimination might be drawn, evidence concerning the agency's treatment of similarly situated individuals outside the appellant's protected class, and evidence that the agency's stated reasons for the action were pretextual. Id. ¶ 24. None of the above types of evidence will be needed in every case. Id. On remand, the appellant should be provided the opportunity to present additional evidence regarding his discrimination claims at the hearing in accordance with the Board’s decision in Pridgen. Should the agency prove its charge and the appellant fail to establish his affirmative defenses, the administrative judge must determine whether the agency has met its burden of establishing a nexus between the action and the efficiency of the service, and that the penalty imposed is within the tolerable bounds of reasonableness. Hall v. Department of Defense , 117 M.S.P.R. 687, ¶ 6 (2012). ORDER For the reasons discussed above, we remand this case to the Western Regional Office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.16	Ford_Frank_L_SF-0752-18-0703-I-2_Remand_Order.pdf	2024-09-19	FRANK L. FORD v. DEPARTMENT OF COMMERCE, MSPB Docket No. SF-0752-18-0703-I-2, September 19, 2024	SF-0752-18-0703-I-2	NP
496	https://www.mspb.gov/decisions/nonprecedential/Alamir_Safa_G_DE-0752-20-0003-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SAFA G. ALAMIR, Appellant, v. DEPARTMENT OF JUSTICE, Agency.DOCKET NUMBER DE-0752-20-0003-I-1 DATE: September 18, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Alan Lescht , Esquire, and Katherine Lease , Esquire, Washington, D.C., for the appellant. Lesley Sotolongo , Esquire, and Karey Hart , Esquire, Falls Church, Virginia, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which affirmed her removal based on a charge of absence without leave (AWOL) and a charge of failure to follow instructions. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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). findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to (1) clarify the credibility findings; (2) vacate the administrative judge’s finding regarding specification 5 of the AWOL charge; and (3) clarify the findings regarding specification 4 of the failure to follow instructions charge, we AFFIRM the initial decision. BACKGROUND The appellant was hired by the agency as a Supervisory Legal Administrative Specialist at the Phoenix Immigration Court, effective April 28, 2019. Initial Appeal File (IAF), Tab 8 at 49. On July 9, 2019, the appellant did not report to duty, and she never returned to duty thereafter. See IAF, Tab 7 at 28-35, 37-44. By a letter dated August 8, 2019, the agency proposed the appellant’s removal based on a charge of AWOL with 13 specifications, based on her absences for the period from July 22, 2019, through August 8, 2019, and a charge of failure to follow instructions with four specifications. Id. at 37-44. The first three specifications of the failure to follow instructions charge related to the appellant’s failure to respond to requests for documentation and information on July 15, 2019, July 25, 2019, and July 30, 2010, pertaining to her absence from work, and the fourth specification2 related to her failure to return to duty on August 5, 2019, as instructed. Id. at 41. By a letter dated September 11, 2019, the deciding official sustained all 13 specifications of the AWOL charge and all four specifications of the failure to follow instructions charge, and sustained the appellant’s removal, effective immediately. Id. at 28, 30-34. The appellant timely filed an appeal of the agency’s removal decision and requested a hearing. IAF, Tab 1. After the appellant subsequently withdrew her hearing request, see IAF, Tabs 36-37, the administrative judge issued an initial decision based on the written record sustaining both charges and the removal penalty, IAF, Tab 44, Initial Decision (ID) at 2, 19. Specifically, the administrative made the following findings: (1) she sustained all 13 specifications of the AWOL charge; (2) she sustained specifications one and three of the failure to follow instructions charge, relating to the instructions the appellant received on July 15, 2019 and July 30, 2019 requesting documentation and information about her absence; (3) she did not sustain specification 2 of the failure to follow instructions charge, relating to the July 25, 2019 instruction for the appellant to provide information regarding her absence; and (4) she concluded that the fourth specification of the failure to follow instructions charge, ordering the appellant on July 30, 2019, to return to duty by August 5, 2019, was based on the same facts underlying specifications 10 through 13 of the AWOL charge, and consequently, the specification merged with those specifications of AWOL. ID at 9-15. Because this specification merged with the AWOL specifications, the administrative judge concluded, the fourth specification of the failure to follow instructions charge was proven “by virtue of the agency’s proof of AWOL,” and therefore was also sustained. ID at 15. The administrative judge also concluded that the agency established a nexus for both charges, that the deciding official appropriately considered the factors identified in Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981) in making her penalty determination,3 and that the penalty of removal was within the bounds of reasonableness, so she sustained the removal penalty, affirming the agency removal action. ID at 16-19. 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 in opposition to the petition for review, and the appellant has not filed a reply. PFR File, Tab 3. DISCUSSION OF ARGUMENTS ON REVIEW On review, the appellant argues that the administrative judge erred by concluding that the agency’s decision denying her request for leave without pay (LWOP) in lieu of AWOL was reasonable. PFR File, Tab 1 at 11-14. She also argues that the administrative judge erred by concluding that the agency met its burden of proving the three specifications of failure to follow instructions. Id. At 15-18. Specifically, for the first specification, concerning the July 15, 2019 request for information and documentation related to her absences, the appellant restates her arguments that she did not receive the instruction, that the instruction was vague or unclear, and that the short deadline for compliance was unreasonable. Id. at 15-16; see IAF, Tab 7 at 46. Regarding specification 3, which concerned the appellant’s failure to respond to four specific questions in a return to duty letter dated July 30, 2019, the appellant argues that the administrative judge ignored evidence that she complied with the instruction to the extent she could, based on the information and documentation she had at the time, and for the portions of the instruction she didn’t comply with, she did not have information to provide beyond what she disclosed to her supervisor at the time, so she was unable to comply. PFR File, Tab 1 at 16-18; see IAF, Tab 7 at 65-68. Regarding specification 4 of the charge, the appellant argues that although the administrative judge merged this specification with the AWOL specifications for the period from August 5 through August 8, 2019, she nevertheless erroneously held that specification against the appellant by separately sustaining it. PFR File, Tab 1 at 18. 4 Finally, the appellant argues that the administrative judge erred in sustaining the removal penalty. Id. at 18-23. She argues that the agency failed to adequately consider mitigating factors, including the fact that she was only absent from duty because she was involved in an emotionally tumultuous custody dispute, which the administrative judge dismissed as merely a “difficult situation.” Id. at 20-21. She also asserts that the agency failed to properly weigh the nature and seriousness of the failure to follow charge, noting that the appellant was charged with missing “arbitrary deadline[s] for providing information,” and asserts that the agency failed to consider the appellant’s positive work history as mitigating, failed to consider her potential for rehabilitation, and failed to practice progressive discipline or consider alternative sanctions other than removal. Id. at 21-23. The administrative judge failed to make specific credibility findings, but we cure that error by making required credibility findings on the remaining contested factual issue. As a preliminary matter, we note that on petition for review, the appellant argues that the administrative judge “plainly ignored” evidence demonstrating that she provided information and documents to the extent she could, and cites excerpts from the appellant’s deposition testimony. PFR File, Tab 1 at 16-17; see id. at 4-24 (citing IAF, Tab 39 at 42-85). In essence, the appellant is arguing that the administrative judge failed to make explicit credibility determinations. We agree, and we supplement the record by making the required credibility findings. In Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987), the Board set forth the factors administrative judges should consider to resolve issues of credibility, including: (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’s5 version of events; and (7) the witness’s demeanor. Id. Because there was no hearing in this appeal, and therefore no direct or cross-examination, impeachment testimony, or other opportunities to observe witness demeanor, the administrative judge had limited credibility evidence to consider. Nevertheless, it remains incumbent upon the Board to resolve issues of credibility as they pertain to disputes of material fact, and it is possible to adapt the Hillen factors to the situation at hand. See Goode v. Defense Logistics Agency, 45 M.S.P.R. 671, 674 n.2 (1990) (finding that the principles of resolving credibility issues are properly applied in cases where there is no hearing); Hillen, 35 M.S.P.R. at 453. Where, as here, an administrative judge’s findings are not based on the observation of witnesses’ demeanor, the Board is free to re-weigh the evidence and substitute its own judgment on credibility issues. Haebe v. Department of Justice, 288 F.3d 1288, 1302 (Fed. Cir. 2002); Hendricks v. Office of Personnel Management, 109 M.S.P.R. 179, ¶ 8 (2008). In addition to the documentary evidence in the record, the agency submitted sworn declarations from the proposing and deciding officials for the appellant’s removal, and a supplementary declaration from the proposing official. IAF, Tab 38 at 29-47; Tab 40 at 11. Additionally, the appellant provided selected excerpts from her deposition testimony for this case. IAF, Tab 39 at 42-85; Tab 41 at 15-22. Based on our review of the entire record, including the provided declarations and selected deposition testimony, we conclude that the only issue the parties materially disagree on with respect to the provided testimonial evidence concerns whether the appellant and her supervisor had a phone conversation on or around July 11, 2019, during which the appellant states that she informed her supervisor that she had been detained, provided additional details regarding her ongoing custody dispute, and requested and received verbal approval for LWOP through September 15 or September 24, 2019. See IAF, Tab 38 at 30-33; Tab 39 at 10-11, 51-53; Tab 40 at 11; Tab 41 at 5, 20. While the appellant alleges that all of these topics were discussed during this purported6 conversation, the appellant’s supervisor denies any such conversation ever occurred. Compare IAF, Tab 39 at 51-53, with Tab 40 at 11. Accordingly, we limit our credibility findings to resolution of this factual dispute. Of the Hillen factors identified above, the relevant factors where no hearing was held include: (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; and (6) the inherent improbability of the witness’s version of events. Hillen, 35 M.S.P.R. at 458. As an initial matter, we note that neither party produced phone record call logs, which may have been helpful for resolving whether the contested phone conversation occurred on or around July 11, 2019. Both the appellant and her supervisor would have been equally capable of observing any phone conversation that occurred, so that factor favors neither party. Hillen, 35 M.S.P.R. at 458. Regarding witness bias, we first acknowledge that the Board has held that while witness bias is a factor in resolving credibility issues, the Board does not discount testimony merely because it is self-serving or the witness has an interest in the outcome. Baldwin v. Department of Veterans Affairs, 111 M.S.P.R. 586, ¶ 23 (2009); see Bennett v. Department of the Air Force, 84 M.S.P.R. 132, ¶¶ 10-11 (1999). Instead, self-serving testimony must be evaluated for credibility in the same manner as all other testimony presented by the parties. Baldwin, 111 M.S.P.R. 586, ¶ 23; Hillen, 35 M.S.P.R. at 458. Nevertheless, we conclude that the appellant stood to benefit by her assertion that the purported conversation occurred in the manner she described because it would undermine the agency’s assertion that she failed to follow several of the instructions for which she was charged and would support her claim that she had been granted the requested LWOP. Conversely, there is no evidence to suggest that the appellant’s supervisor exhibited any bias or motive to fabricate testimony based on his7 provided declaration, so we conclude that this factor slightly favors the appellant’s supervisor’s denial that a phone conversation occurred in the manner described by the appellant. With respect to any contradiction or consistency between each witness’s version of events and other evidence in the record, although the appellant equivocally asserted that the phone call occurred “sometime around July 11,” she was never able to specifically identify the date on which the conversation purportedly occurred.2 IAF, Tab 39 at 51-52. The appellant’s supervisor, by contrast, denied receiving a phone call from the appellant on July 11, 2019, and provided a detailed accounting of his text and phone conversations with the appellant during the period from July 9 through July 25, 2019. IAF, Tab 38 at 30-37. Additionally, although the appellant maintains that she provided answers to the questions contained in the July 30, 2019 return to duty letter during her July 11, 2019 conversation with her supervisor, the record clearly reflects that her supervisor continued to seek answers to several of the questions she purportedly answered (including whether not she had been arrested) well after their July 11, 2019 conversation, undermining the appellant’s assertion that the conversation occurred in the manner she described. See IAF, Tab 7 at 61, 65 -68. Regarding the appellant’s claim that she requested and received approval for LWOP for the period through September 15 or September 24, 2019, an email dated July 17, 2019, reflects that the appellant made a request for LWOP for the period from July 15 through July 19, 2019 only, and subsequently entered her request into WebTA (the agency’s time and attendance program) on July 18, 2019. IAF, Tab 7 at 49-50; see IAF, Tab 38 at 70-73. It defies logic that the appellant would receive verbal approval for LWOP for a longer period of time, only to turn around 2 With her petition for review, the appellant has provided a supplementary declaration reasserting that she told her supervisor that she was “detained when [she] refused to give up [her] son,” and that she shared with her supervisor “all the information” she had regarding her “arrest and detainment,” but she still fails to identify when and how she disclosed this information. PFR File, Tab 1 at 26.8 and make a request in WebTA a week later for a shorter period of time than she states she was verbally granted. By contrast, in his sworn declaration, the appellant’s supervisor unequivocally denies that the appellant ever informed him that she had been arrested or detained, and denies that he verbally approved any LWOP requested on any date. IAF, Tab 40 at 11. We conclude that this factor strongly favors the appellant’s supervisor’s assertion that the July 11, 2019 phone call did not occur in the manner described by the appellant. Finally, regarding the inherent improbability of a witness’s version of events, in his declaration, the appellant’s supervisor noted that he transcribed his text messages and the events that occurred during the period from July 9 through July 15, 2019, and emailed a transcription of the events to himself on July 15, 2019, in order to preserve the record of his communications with the appellant. See IAF, Tab 38 at 61-62. Although the log of events includes a record of the phone call he received from the appellant on July 9, 2019, and from the appellant’s mother on July 10, 2019, it does not have any record of a phone call from the appellant during the period from July 11 through July 15, 2019. IAF, Tab 38 at 30-32; see id. at 61-62. Given the supervisor’s meticulous recordkeeping, we conclude that it is inherently improbable that any such call, if it had occurred, would not be reflected in the supervisor’s record log. Accordingly, we conclude that this factor also favors a finding that the conversation did not occur in the manner described by the appellant. Consequently, we supplement the initial decision to find that the appellant’s assertion that a phone call occurred on or around July 11, 2019, regarding the topics addressed above is less credible than her supervisor’s denial that any such phone call occurred, and we do not credit her claim. See Hillen, 35 M.S.P.R. at 458.9 The agency proved specifications 1 through 4 and 6 through 13 of the AWOL charge. We agree with the administrative judge’s finding sustaining specifications 1 through 4 and 6 through 13 of the AWOL charge. As the administrative judge correctly noted, to prove a charge of AWOL the agency must show that the appellant was absent from duty on the dates in question and that her absences were not authorized or that a request for leave was properly denied. Boscoe v. Department of Agriculture, 54 M.S.P.R. 315, 325 (1992); see ID at 9. Additionally, while it is well settled that the decision to grant LWOP is within an agency’s discretion, where disciplinary action results because LWOP is denied and the employee is placed on AWOL, the Board will review the circumstances to determine if the denial was reasonable. Joyner v. Department of the Navy, 57 M.S.P.R. 154, 159 (1993); see Sambrano v. Department of Defense, 116 M.S.P.R. 449, ¶ 4 (2011). In the initial decision, the administrative judge concluded that there was no dispute that the appellant was absent from duty during the period from July 22, 2019, through August 8, 2019 (encompassing specifications 1 through 13), and that her absences were not authorized. See ID at 9-12. The administrative judge also considered the appellant’s argument that the agency’s decision denying her request for LWOP in lieu of AWOL was unreasonable, but concluded that the agency permissibly denied her LWOP request. See ID at 10- 12. Specifically, the administrative judge noted that despite the appellant’s assertion that the agency was required to grant her LWOP request due to her obligations related to her custody dispute, the Board has held that agencies are not obligated to grant LWOP requests in comparable circumstances. See ID at 11 (citing Hawkins v. Department of Navy, 49 M.S.P.R. 501, 505 (1991)). Alternatively, the administrative judge considered the appellant’s argument that confidentiality laws or other reasons prevented her from providing information to justify her LWOP request, but determined that nothing in the record supported this assertion, noting that the appellant had, in fact, provided some information10 regarding her custody dispute to the agency, and that obligating the agency to approve the appellant’s absences based on her court or child custody obligations would unduly burden the agency by forcing other employees to take on the appellant’s workload without a foreseeable end. See ID at 11-12. On review, the appellant restates her argument raised below that the agency’s decision denying her request for LWOP was unreasonable, citing the initial decision Cromwell v. Social Security Administration, MSPB Docket No. AT-0752-06-0406-I-1, Initial Decision at 6 (July 7, 2016), to support her assertion. PFR File, Tab 1 at 12-13. With respect to the specifications identified above, we find no error in the administrative judge’s determination and find no reason to disturb it on review. As an initial matter, Cromwell is an initial decision, and therefore is not binding precedent on the Board. Additionally, the decision is distinguishable on its facts. The appellant in that case was summoned to appear before the court on threat of criminal contempt or arrest, and the administrative judge only declined to sustain one day of AWOL—the day of the appellant’s actual hearing—and sustained the remaining 8 days of AWOL charged. Cromwell, MSPB Docket No. AT-0752-06-0406-I-1, Initial Decision at 6 (July 7, 2016). Here, aside from a hearing scheduled for August 7, 2019 (encompassing the period identified in specification 12), the appellant has not alleged that she had a hearing on any other date.3 We also agree with the administrative judge’s conclusion that the agency’s decision denying her request for LWOP in lieu of AWOL was not unreasonable. ID at 9-10. In finding that the agency permissibly denied the appellant’s LWOP request, the administrative judge properly examined the record as a whole to determine whether the denial of LWOP was reasonable under the circumstances. See Joyner v. Department of the Navy, 57 M.S.P.R. 154, 159 (1993); ID at 9-12. She credited the agency’s assertion that the appellant’s lengthy unauthorized 3 In the appellant’s deposition testimony, she acknowledged that the hearing scheduled for August 7, 2019, was ultimately canceled. See IAF, Tab 39 at 61. 11 absences created a significant burden on the agency by requiring her workload to be handled by other Supervisory Legal Administrative Specialists and the rest of the management team, and concluded that the appellant’s repeated unwillingness to commit to a date by which she would return established that there was no foreseeable end in sight to her absences. See ID at 10-11. The administrative judge also determined that the appellant had not established that she was suffering from medical issues or incapacitation, or that her circumstances met any of the other exceptions to the general rule that the decision to deny a request for LWOP is within an agency’s discretion. ID at 9-10; see Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 29 (2015), overruled in part on other grounds by Pridgen v. Office of Management and Budget, 2022 MSPB 31; Thomas v. Department of Army, 23 M.S.P.R 483, 484 (1984). The appellant’s mere disagreement with these findings does not, without more, establish a basis for review. See Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1988) (observing that mere reargument of factual issues already raised and properly resolved by the administrative judge below does not establish a basis for review). We find, therefore, that she has not shown that the administrative judge erred in sustaining specifications 1 through 4 and 6 through 13 of the charge of AWOL. We vacate the administrative judge’s finding sustaining specification 5 of the AWOL charge, but we still sustain the charge. Although not raised on review, we take this opportunity to address the administrative judge’s finding with respect to specification 5 of the AWOL charge, which alleged that the appellant was absent without leave on July 26, 2019. See IAF, Tab 7 at 40; ID at 9. In the initial decision, the administrative judge concluded that the agency met its burden of proving this specification of the charge. ID at 9, 12. However, in the agency’s close of record brief it withdrew this specification from consideration. IAF, Tab 38 at 4. The Board is required to review the agency’s decision on an adverse action solely on the12 grounds invoked by the agency; the Board may not substitute what it considers to be a more adequate or proper basis. Fargnoli v. Department of Commerce, 123 M.S.P.R. 330, ¶ 7 (2016). Consequently, we conclude that the administrative judge erred when she sustained specification 5 of the charge of AWOL despite the agency’s decision to withdraw that specification from consideration, and we vacate the administrative judge’s finding sustaining that specification. See ID at 9, 12. Nevertheless, the Board has regularly held that “proof of one or more, but not all, of the supporting specifications [of a charge] is sufficient to sustain the charge.” Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990); Greenough v. Department of the Army, 73 M.S.P.R. 648, 657 (1997). For the reasons previously discussed, we ultimately agree with the administrative judge’s conclusion that the agency proved the remaining 12 specifications of the AWOL charge, and thus, proved the charge as a whole. The agency proved the charge of failure to follow instructions. 4 The administrative judge correctly concluded that the agency proved specification 1 of the failure to follow instructions charge. On review, the appellant also challenges the administrative judge’s findings concerning the specifications of the failure to follow instructions charge. PFR File, Tab 1 at 15-18. Specification 1 of the charge alleged that the appellant failed to respond to a July 15, 2019 request from her first-line supervisor for documentation to support her ongoing absences by noon the following day. IAF, Tab 7 at 41, 46. In the initial decision, the administrative judge determined that the agency proved the charge by showing that the instruction was “an understandable directive (provide information by noon on July 16),” and that the appellant failed to follow that directive. See ID at 12. Regarding the appellant’s argument that the directive set an “arbitrary deadline” that she later met, the administrative 4 Neither party has challenged the administrative judge’s decision not to sustain specification 2 of the failure to follow instructions charge, so we have not addressed it here. See ID at 13. 13 judge determined that there was nothing objectively unreasonable about the timeframe set by the agency and that nothing prohibited the agency from imposing an arbitrary deadline to respond, so the appellant’s argument was without merit. ID at 12-13. The administrative judge consequently sustained the specification. ID at 13. On review, the appellant restates her argument raised below that the agency’s request for “some type of documentation” was vague or unclear, and that the appellant’s supervisor never specified what sort of documentation he needed from the appellant. PFR File, Tab 1 at 15. The appellant also reasserts that she never received the email message conveying the instruction because it was sent to her government email address, that she does not recall when she received the text message reproducing the instruction, and that she provided the information as soon as she practicably could, on the morning of July 17, 2019. Id. at 15. In the response she ultimately provided, the appellant asserts that she provided the information she had and that her supervisor appeared satisfied with her response, and so the specification should not be sustained. Id. at 15-16. Regarding the dispute concerning whether and when the appellant received the instruction, the record reflects that at 5:15 P.M. on the evening of July 15, 2019, the appellant’s first-line supervisor sent an email to the appellant’s government email address informing her that he had been told that he needed “some type of documentation” from her regarding her absence, and stated that it would be helpful if he knew “a little bit more about what you are going through.” IAF, Tab 38 at 79; see id. at 32. The message requested that the appellant “[p]lease respond to this email by noon tomorrow.” Id. at 79. The supervisor also averred that after sending the email, he sent the appellant a text message alerting her to the fact that he had sent an email to her government email address, and requested that she respond to his email. Id. at 32; see id. at 80. The supervisor declared that in response to his text message, the appellant sent him a text stating that she did not have access to “go to mail,” (presumably referring to14 her government email), and that she didn’t have a link to log on to WebTA. See id. at 32, 80. The supervisor stated that he responded to the appellant’s text message by copying the message he sent to her government email address into a text message and sent it to her that same evening. Id. at 33, 80. On the morning of Wednesday, July 17, 2019, the appellant’s supervisor sent an email to the appellant’s personal email address stating that he had not received any documentation from the appellant by the noon, July 16th deadline. Id. at 82-83. At 7:43 a.m. that day, the appellant responded by email stating that she had a family emergency, and provided some additional details regarding her absence, including that she was out of the state due to an ongoing custody dispute over her son involving the father of her child, but she did not provide any documentation at that time. Id. at 82. In an email response, the appellant’s supervisor thanked her for the email and requested that as soon as she got any documentation, she email it to him. Id. Based on our review of the entire record, we agree with the administrative judge’s conclusion that the agency proved this specification of the charge. As the administrative judge correctly noted, an agency may prove a charge of failure to follow instructions by establishing that (1) the employee was given a proper instruction and (2) the employee failed to follow the instructions, without regard to whether the failure was intentional or unintentional. Archerda v. Department of Defense, 121 M.S.P.R. 314, ¶ 16 (2014); Hamilton v U.S. Postal Service, 71 M.S.P.R. 547, 555 (1996); see ID at 12. Here, although the appellant indicates that she does not recall when she received the instruction, she does not directly dispute her supervisor’s assertion that he sent the instruction to her government email on the evening of July 15, 2019, and that he reproduced the instruction in a15 text message that he sent to the appellant that same evening.5 IAF, Tab 38 at 32- 33. Additionally, although the appellant asserts that the instruction was vague or unclear and that she was unsure about what sort of documentation she was expected to provide, she does not dispute the fact that she failed to provide any response whatsoever—even an incomplete response lacking any sort of documentation—until the morning of July 17, 2019, well after the deadline established by the agency for a response. PFR File, Tab 1 at 15-16; see Pedeleose v. Department of Defense, 110 M.S.P.R. 508, ¶¶ 16, 18, aff’d, 343 F. App’x 605 (Fed. Cir. 2009) (concluding that even when an employee may have substantial reason to believe that an order is improper, absent unusual circumstances (such as when obedience would cause her irreparable harm or place her in a clearly dangerous situation), an employee must first comply with the instruction and then, if she disagrees with it, register her complaint or grievance later); Larson v. Department of the Army, 91 M.S.P.R. 511, ¶ 21 (2002). Further, as the agency correctly observed below, any potential vagueness in the supervisor’s instruction was due to the fact that the appellant had provided inadequate explanations for the reason for her absences up to that point, so it was unclear to her supervisor whether the appellant or one of her family members were sick, in which case she would have needed to produce supporting medical documentation to support her absences. See IAF, Tab 38 at 31 (“I believed the Appellant was sick [as of July 11, 2019]”; “At this point [on July 14, 2019], I thought either the Appellant or her son was gravely ill, possibly with a diagnosis such as cancer.”). 5 The conclusion that the supervisor did, in fact, send the instruction to the appellant’s government email address and by text message, is bolstered by the fact that in his subsequent email on the morning of July 17, 2019, noting that the appellant had failed to follow his instruction, the appellant’s supervisor referred to the “last text/email ” he had sent to the appellant requesting documentation for her absences by noon the previous day, indicating that he had sent the instruction both by text and by email on July 15, 2019. See IAF, Tab 1 at 28-29 (emphasis added). 16 Finally, we similarly find no merit to the appellant’s argument that the timeline the agency set for her to respond to the instruction was unreasonable. PFR File, Tab 1 at 15-16. As the administrative judge noted, there was nothing inherently unreasonable about the deadline set by the appellant’s supervisor, particularly given that the appellant and her supervisor had been in regular contact when he sent her the instruction, and he had previously sent several similar messages asking for information and updates from the appellant about her status and about why she had been absent from work for the previous 4 days, which the appellant had, up to that point, failed to satisfactorily answer. See IAF, Tab 38 at 31-32, 61-62. Accordingly, we conclude that the administrative judge properly sustained specification 1 of the failure to follow instructions charge. The administrative judge correctly concluded that the agency proved specification 3 of the charge. Specification 3 of the charge alleged that the appellant failed to follow her supervisor’s instruction on July 30, 2019, directing her to provide information that supported her absences dating back to July 9, 2019, and instructing her to provide answers to each of the following questions: (1) whether she was arrested in connection with her extended absence, and if she was arrested, what she was arrested for; (2) when her scheduled court dates were, and the reasons for each court date; (3) a firm date by which she intended to return to duty; and (4) an explanation for why she failed to return to duty at the Phoenix immigration court as of that date. IAF, Tab 7 at 41, 65-68. In the initial decision, the administrative judge concluded that the agency met its burden of proving this specification of the charge. ID at 14-15. Specifically, the administrative judge considered the appellant’s assertion that she had provided “numerous emails and documents” establishing the basis for her ongoing court case and the reason she had to remain in California, but concluded that the only relevant communication was the one on August 5, 2019. ID at 14. Reviewing the August 5, 2019 communication, the administrative judge determined that it was not fully17 responsive to the agency’s questions, noting that the appellant failed to address whether she had been arrested, failed to explain the reasons for three upcoming court dates, and failed to provide an explanation for why she had not reported to duty. ID at 14. The administrative judge determined that, although the appellant had provided some information that was responsive to the agency’s questions (that is, the fact that she had upcoming court dates and scheduled visitations with her child), when balanced against the portions of the instruction the appellant failed to follow, the agency met its burden of proving as much of the specification as was necessary to prove the charge. ID at 14-15 (citing Otero v U.S. Postal Service, 73 M.S.P.R. 198, 204 (1997)). On review, the appellant argues that the administrative judge ignored the fact that she had provided the information requested in the July 30, 2019 letter to the extent that she was able to, based on the information and documentation she had at the time. PFR File, Tab 1 at 16. Specifically, the appellant states that she provided documentation regarding the reasons for her pending court dates and the fact that they pertained to her custody dispute, as well as an explanation that she could not return to duty due to her legal obligations related to her custody dispute. PFR File, Tab 1 at 16. Regarding the information concerning her arrest, the appellant states that she did not have any information about her arrest at the time the agency requested it beyond the information she states she previously disclosed to her supervisor about being detained. Id. at 17; see IAF, Tab 39 at 52. The appellant also states that she has new and material evidence regarding her arrest in the form of a notice she received on June 22, 2020 informing her that the arraignment for her July 2019 arrest was scheduled for September 2020, and she provides a copy of this notice. PFR File, Tab 1 at 17, 26-32. She asserts that this June 22, 2020 notice was the first time she became aware of the specific reason she was arrested on July 9, 2019, and that if she had had this document when she received the July 30, 2019 instruction, she would have provided it. Id. at 17. She argues that because she provided all of the information that she had at the time,18 the administrative judge erred in sustaining specification 3 of the failure to follow instructions charge and the charge should be reversed. Id. at 17-18. As an initial matter, we agree with the administrative judge’s finding that the only communication from the appellant relevant to this specification is her email on August 5, 2019, responding to the July 30, 2019 return to duty letter issued by her supervisor. ID at 14; see IAF, Tab 7 at 73-78. As the administrative judge noted, the fact that the appellant’s supervisor continued to pose the four questions identified in the July 30, 2019 return to duty letter made clear that he found any previous responses from the appellant on these subjects insufficient. See ID at 14. Reviewing the appellant’s August 5, 2019 email, she identifies the fact that she had a previous court date scheduled for July 11, 2019, that was postponed until July 15, 2019, and that she had upcoming hearings scheduled for August 7, 2019, August 15, 2019, and September 4, 2019. IAF, Tab 7 at 73. She also arguably provides an explanation as to why she had been absent for at least a portion of the previous 4 weeks, noting that she had frequent court-ordered visits, classes, and meetings with her counselor related to her custody dispute. Id. Finally, she provides a copy of a notice for the July 12, 2019 scheduled custody hearing, and a weekly visitation schedule with her child. Id. at 75-76. Nevertheless, the appellant’s August 5, 2019 reply does not provide any response to the following questions: (1) whether she had been arrested in connection with her extended absences; (2) what she had been arrested for; (3) the reasons for some of her court dates; and (4) a firm date by which she intended to return to duty. See IAF, Tab 7 at 67. Although the appellant continues to assert that she did not become aware of what she was arrested for until she received the summons on June 22, 2020, she has never disputed the fact that she was aware of the fact that she was arrested, when she was arrested and held overnight on July 9, 2019.6 See IAF, Tab 39 6 As the appellant’s supervisor identified in his declaration, this instruction was particularly important since agency policy requires supervisors to instruct employees who are arrested to self-report their arrests to the agency’s security office, which the19 at 57. Further, the appellant has not disputed that at the time she provided her August 5, 2019 response, she was aware of the fact that her hearing scheduled for August 7, 2019, was related to her arrest. See IAF, 39 at 61. An agency is required to prove only the essence of its charge, and the Board will examine the structure and language of the proposal and decision, as well as the accompanying specifications and circumstances. See Cole v. Department of the Air Force, 120 M.S.P.R. 640, ¶ 8 (2014); George v. Department of the Army, 104 M.S.P.R. 596, ¶ 7 (2007), aff’d, 263 F. App’x 889 (Fed. Cir. 2008). The July 30, 2019 return to duty letter specifically required the appellant to provide a response to each of the four questions identified above, which she failed to do. See IAF, Tab 7 at 67. Consequently, we agree with the administrative judge’s conclusion that the agency met its burden of proving that the appellant failed to follow the instruction contained in the July 30, 2019 return to duty letter, and we sustain specification 3 of the charge.7 Because specification 4 of the failure to follow instructions charge merged into specifications 10 through 13 of the AWOL charge, the administrative judge erred by separately sustaining specification 4 of the failure to follow instructions charge. On review, the appellant also argues that, despite merging specification 4 of the failure to follow instructions charge into specifications 10 through 13 of appellant’s supervisor told her attorney in a July 23, 2019 email. See IAF, Tab 7 at 54-55; Tab 40 at 11. 7 With respect to the June 22, 2020 letter scheduling the arraignment for the appellant’s July 9, 2019 arrest and the copy of the online docket information for her criminal case that the appellant provides for the first time on review, we have not considered this information. See PFR File, Tab 1 at 27-31. The Board will not consider evidence submitted for the first time with a petition for review absent a showing that it is both new and material. Okello v. Office of Personnel Management, 112 M.S.P.R. 563, ¶ 10 (2009); see 5 C.F.R. § 1201.115(d). Although the arraignment letter and the online docket information are dated after the date the initial decision was issued, and therefore are “new,” because they have no bearing on the issue whether the appellant was aware of the fact that she was arrested at the time she responded to the July 30, 2019 email, they do not change the outcome of this case, and so they are not material. Consequently, we have not considered either document.20 the AWOL charge, the administrative judge still held that specification of the failure to follow instructions charge against her by sustaining it “separate and apart from” the AWOL charge. PFR File, Tab 1 at 18. We agree. In the initial decision, the administrative judge concluded that the July 30, 2019 instruction ordering the appellant to return to duty was “based on the same facts that underlie” AWOL specifications 10 through 13, and as a result, they merged. ID at 15 (citing Jones v. Department of Justice, 98 M.S.P.R. 86, ¶ 16 (2004)). As a consequence, the administrative judge reasoned, specification 4 of the failure to follow instructions charge was also “proven by virtue of the agency’s proof of AWOL,” and she sustained that specification of the failure to follow instructions charge. ID at 15 (citing Mann v. Department of Health & Human Services, 78 M.S.P.R. 1, 6 (1998)). However, the Board has held that where two charges are based on the same incident and involve the same misconduct, they “merge into a single charge.” Bross v. Department of Commerce, 94 M.S.P.R. 662, 664 n.1 (2003), aff'd, 389 F.3d 1212 (Fed. Cir. 2004). Although it is true that the practical consequence of merging duplicative charges into a single charge is that the facts that underlie both charges are proven, the Board has also held that it “need not consider [the un-merged charge] further,” except to say that it is proven. Powell v. U.S. Postal Service, 122 M.S.P.R. 60, ¶ 10 (2014); Jones v. Department of Justice, 98 M.S.P.R. 86, ¶ 16 (2004); see Westmoreland v. Department of Veterans Affairs, 83 M.S.P.R. 625, ¶ 6 (1999) (merging charges of failure to follow leave- requesting procedures into the charge of AWOL when the charge of AWOL was based solely on the appellant’s failure to follow the leave requesting procedures), aff’d, 19 F. App’x 868 (Fed. Cir. 2001), overruled on other grounds as recognized in Pickett v. Department of Agriculture, 116 M.S.P.R. 439, ¶ 11 (2011). Consequently, it was unnecessary for the administrative judge to separately sustain specification 4 of the failure to follow instructions charge, and we vacate her finding in that regard. In any event, because we agree with the21 administrative judge’s conclusion that the agency met its burden of proving specifications 1 and 3 of the failure to follow instructions charge, we conclude that the agency has met its burden of proving the failure to follow instructions charge as a whole. See Burroughs, 918 F.2d at 172; Greenough, 73 M.S.P.R. at 657. The administrative judge correctly concluded that the penalty of removal was reasonable. Finally, on review the appellant argues that the administrative judge erred in sustaining the removal penalty. PFR File, Tab 1 at 18-23. Specifically, she asserts that the agency did not consider mitigating factors, including the fact that she was only absent from duty because she was involved in an emotionally tumultuous custody dispute, and that the administrative judge improperly weighed this factor by dismissing the appellant’s circumstance as merely a “difficult situation.” Id. at 20-21. The appellant also argues that the agency failed to properly consider the nature and seriousness of the failure to follow instructions charge, noting that she was charged with missing “arbitrary deadline[s].” Id. at 21. She also argues that the agency failed to consider her positive work history as mitigating, failed to consider her potential for rehabilitation, and failed to practice progressive discipline or consider alternative sanctions other than removal. Id. at 21-23. When, as here, the Board sustains the agency’s charges, but not all of the specifications of those charges, it will review the agency-imposed penalty to determine whether it is within the parameters of reasonableness. Dunn v. Department of the Air Force, 96 M.S.P.R. 166, ¶ 10 (2004). The Board’s function is not to displace management’s responsibility or to decide what penalty it would impose, but to assure that management’s judgment has been properly exercised and that the penalty selected by the agency does not exceed the maximum limits of reasonableness. Stuhlmacher v. U.S. Postal Service, 89 M.S.P.R. 272, ¶ 20 (2001); Douglas, 5 M.S.P.R. at 306. Thus, the Board will22 modify a penalty only when it finds that the agency failed to weigh the relevant factors or that the penalty the agency imposed clearly exceeds the bounds of reasonableness. Stuhlmacher, 89 M.S.P.R. 272, ¶ 20. Here, despite the appellant’s assertion otherwise, the record clearly reflects that the deciding official considered all of the relevant Douglas factors in reaching her decision to sustain the removal action. IAF, Tab 7 at 33-34; see generally Douglas, 5 M.S.P.R. at 305-06 (providing a nonexhaustive list of factors that are relevant to determine the appropriate penalty). As the administrative judge noted, in her penalty determination, the deciding official considered as mitigating factors that the appellant had previously carried out her duties professionally prior to her extended period of AWOL, that she had no record of prior discipline with the agency, that she was experiencing “personal issues” with regard to her custody dispute, that she accepted a degree of responsibility for her misconduct, and the appellant’s 11 years of total service. IAF, Tab 7 at 33; see ID at 18. Despite these mitigating factors, the deciding official concluded that those factors were outweighed by the fact that the appellant had accrued significant AWOL and failed to follow instructions related to those absences, which were serious offenses, that the appellant was a supervisor and was held to a higher standard, that her long-term and unpredictable absence had an adverse impact on the agency’s ability to carry out its mission, that given the severity of the appellant’s misconduct, there was no potential for rehabilitation, and that no alternative penalty other than removal was appropriate. IAF, Tab 7 at 33-34; see Bowman v. Small Business Administration, 122 M.S.P.R. 217, 12 (2015) (finding that the appellant’s absence without leave and failure to follow leave requesting procedures were serious offenses and his status as a supervisor was significant to the penalty determination because, as a supervisor, he was held to a higher standard); Maddux v. Department of the Air Force, 68 M.S.P.R. 644, 645-46 (1995) (upholding the appellant’s removal for 21 consecutive calendar23 days of AWOL, despite 20 years of Federal service); Hawkins v. Department of the Navy, 49 M.S.P.R. 501, 503, 507 (1991) (finding that the penalty of removal was reasonable for 16 days of AWOL for an appellant with no prior discipline and 6 years of service); Young v. U.S. Postal Service, 14 M.S.P.R. 549, 551 (1983) (upholding the appellant’s removal for 40.75 hours of AWOL over an approximately 6-week period, despite 17 years of Federal service). Additionally, in her sworn declaration, the deciding official restated these findings, and emphasized that she still would have determined that removal was the appropriate penalty based on 12 specifications (108 hours) of AWOL alone. IAF, Tab 38 at 46. Accordingly, we agree with the administrative judge’s conclusion that the agency appropriately considered the relevant Douglas factors, and that the penalty of removal is reasonable.8 For the foregoing reasons, we affirm the initial decision sustaining the agency removal action, as modified by this final order. NOTICE 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 this final decision. 5 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 We note that the administrative judge incorrectly implied that a charge “must” be sustained where “some, but not all, specifications supporting a charge are sustained.” ID at 15 (citing Greenough v. Department of the Army, 73 M.S.P.R. 648, 657 (1997)). Nevertheless, the administrative judge also correctly quoted the decision from the U.S. Court of Appeals for the Federal Circuit in Burroughs v. Department of the Army, 918 F.2d at 170, making clear that “[w]here more than one event or factual specification is set out to support a single charge, proof of one or more, but not all, of the supporting specifications is sufficient to sustain the charge.” ID at 15 (emphasis added). Because we ultimately agree with the administrative judge’s finding that the agency’s chosen penalty was reasonable, this misstatement was harmless and did not affect the outcome of the decision in any way. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that was not prejudicial to a party’s substantive rights provided no basis for reversal of an initial decision). 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.24 forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 25 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case, and 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 the26 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 petition for 10 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of27 review within 60 days of the date of issuance of this decision. 5 U.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. MSPB decisions 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. 28 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.29	Alamir_Safa_G_DE-0752-20-0003-I-1_Final_Order.pdf	2024-09-18	SAFA G. ALAMIR v. DEPARTMENT OF JUSTICE, MSPB Docket No. DE-0752-20-0003-I-1, September 18, 2024	DE-0752-20-0003-I-1	NP
497	https://www.mspb.gov/decisions/nonprecedential/Henderson_PaulAT-0845-22-0557-X-1_FInal_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD PAUL HENDERSON, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER AT-0845-22-0557-X-1 DATE: September 18, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Paul Henderson , Merritt Island, Florida, pro se. Kevin Landon Beach , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER ¶1On March 10, 2023, the administrative judge issued a compliance initial decision finding the Office of Personnel Management (OPM) noncompliant with the October 24, 2022 final order in the underlying matter, which dismissed the appellant’s Federal Employees Retirement System (FERS) annuity appeal as settled. Henderson v. Office of Personnel Management , MSPB Docket No. AT- 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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). 0845-22-0557-C-1, Compliance File, Compliance Initial Decision (CID), Tab 14; Henderson v. Office of Personnel Management , MSPB Docket No. AT-0845-22- 0557-I-1, Initial Appeal File, Initial Decision (ID), Tab 22. For the reasons discussed below, we now find OPM in compliance and DISMISS the petition for enforcement. DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE ¶2On October 24, 2022, the administrative judge issued an initial decision dismissing the appellant’s FERS appeal as settled and accepting the settlement agreement into the record for enforcement. ID at 1-2. The initial decision became the Board’s final decision upon the expiration of the petition for review deadline. 5 C.F.R. § 1201.113. ¶3The appellant subsequently filed a petition for enforcement, to which OPM failed to respond despite multiple orders by the administrative judge. See CID at 2. The administrative judge accordingly issued a compliance initial decision finding OPM noncompliant with the initial decision and granting the appellant’s petition for enforcement. The administrative judge instructed OPM to come into compliance by fulfilling its obligations under the settlement agreement within 60 days. CID at 4. ¶4In the compliance initial decision, the administrative judge informed OPM that, if it decided to take the compliance actions required by the decision, it must submit to the Office of the Clerk of the Board, within the time limit for filing a petition for review under 5 C.F.R. § 1201.114(e), a statement that it had taken the actions identified in the compliance initial decision, along with evidence establishing that it had taken those actions. CID at 4-5; 5 C.F.R. § 1201.183(a)(6) (i). He also informed the parties of their option to request Board review of the compliance initial decision by filing a petition for review by April 14, 2023, the date on which the findings of noncompliance would become final unless a petition for review was filed. CID at 5; see 5 C.F.R. §§ 1201.114(e), 1201.183(a)(6)(ii),2 1201.183(b). Neither party petitioned for review. Accordingly, pursuant to 5 C.F.R. § 1201.183(b)-(c), the administrative judge’s findings of noncompliance became final, and the appellant’s petition for enforcement was referred to the Board for a final decision on issues of compliance. Henderson v. Office of Personnel Management , MSPB Docket No. AT-0845-22-0557-X-1 , Compliance Referral File (CRF), Tab 1. ¶5The Board then issued an Acknowledgement Order instructing OPM to file evidence of compliance within 15 calendar days, and advising the appellant that he should respond within 20 days of the date of OPM’s submission. The order noted that if he did not do so, the Board might assume he was satisfied and dismiss the petition for enforcement. CRF, Tab 1 at 3. The Board reiterated this warning to the appellant in a subsequent order instructing both parties to respond. CRF, Tab 5. ¶6On August 7, 2024, OPM filed a response asserting that on June 10, 2024, the agency had paid the appellant the amount required in the settlement agreement. CRF, Tab 6 at 3. The appellant has not responded to this submission. ANALYSIS ¶7A settlement agreement is a contract and, as such, will be enforced in accordance with contract law. Burke v. Department of Veterans Affairs , 121 M.S.P.R. 299, ¶ 8 (2014). The Board will enforce a settlement agreement that has been entered into the record in the same manner as a final Board decision or order. Id. When the appellant alleges noncompliance with a settlement agreement, the agency must produce relevant material evidence of its compliance with the agreement or show that there was good cause for noncompliance. Id. The ultimate burden, however, remains with the appellant to prove breach by a preponderance of the evidence.2 Id. 2 A preponderance of the evidence is the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).3 ¶8We find that OPM has belatedly submitted evidence of compliance that appears to satisfy its obligations in the settlement agreement. Although OPM did not explain its calculations, the appellant has not responded to the submission as ordered, and thus has not challenged OPM’s assertion that has paid the appellant as required by the settlement agreement. Accordingly, we find OPM 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 RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you5 receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and 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: 6 Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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. 7 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Henderson_PaulAT-0845-22-0557-X-1_FInal_Order.pdf	2024-09-18	PAUL HENDERSON v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0845-22-0557-X-1, September 18, 2024	AT-0845-22-0557-X-1	NP
498	https://www.mspb.gov/decisions/nonprecedential/Naylor_Christopher_E_DE-0752-20-0305-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CHRISTOPHER E. NAYLOR, Appellant, v. DEPARTMENT OF THE AIR FORCE, Agency.DOCKET NUMBER DE-0752-20-0305-I-1 DATE: September 18, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Christopher E. Naylor , Sahuarita, Arizona, pro se. Thomas J. Burhenn , Esquire, Davis-Monthan Air Force Base, Arizona, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which affirmed the agency’s removal action for failure to maintain a condition of employment. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). DISCUSSION OF ARGUMENTS ON REVIEW The administrative judge affirmed the agency’s removal of this Fork Lift Operator for failure to maintain a condition of employment after an offense of driving under the influence led to a 1-year suspension of his driving privileges at military installations. Initial Appeal File (IAF), Tab 20, Initial Decision (ID) at 2-12. The administrative judge found that the agency proved by preponderant evidence that driving privileges were a condition of employment and the appellant failed to maintain that condition. ID at 5-8. The appellant argued before the administrative judge that he could request reinstatement or partial reinstatement of his driving privileges at any time during the 1-year suspension notwithstanding his removal and that he would be submitting such a request to the agency. IAF, Tab 15 at 3. The administrative judge found that the appellant did not request partial or restricted installation driving privileges during his employment with the agency, and he provided no further update or subsequent determination following his alleged submission to the agency. ID at 8. The administrative judge therefore found that the appellant had a reasonable2 opportunity to refute any facts or circumstances upon which the suspension was based, request restoration of driving privileges or restricted privileges, and request a hearing. Id. On review, the appellant argues that he learned via the initial decision that his original request for reinstated driving privileges, submitted after the agency removed him, was not received by the agency. Petition for Review (PFR) File, Tab 1 at 3-4. He asserts that there is no time limit to request reinstatement of his privileges, which was the basis for his removal. Id. at 4. He therefore requests that a final decision on his appeal be delayed until after he receives an agency decision on his request to reinstate his driving privileges. Id. at 5. We are unpersuaded. The Board has held that, when an agency initiates a removal process long before an appellant is scheduled to have his driving privileges reinstated, the Board need not consider, at the time of adjudication, the time remaining before reinstatement in affirming an agency’s removal action. Benally v. Department of the Interior, 71 M.S.P.R. 537, 540 (1996). The agency here proposed the appellant’s removal nearly a year before his driving privileges were due to be restored. IAF, Tab 4 at 8, 33. Thus, we find immaterial the time remaining until the appellant’s driving privileges are restored or whether his request for reinstated driving privileges, submitted after the agency effected his removal, could be successful. See Daigle v. Department of the Air Force , 142 F. App’x 446, 449 (Fed. Cir. 2005) (holding that the fact that the Board’s final decision was issued long after the due date for restoration of the appellant’s driving privileges did not require reversal of the Board’s decision affirming his removal for failure to have a required driver’s license);2 Benally, 71 M.S.P.R. at 540. We therefore decline to delay our decision before the agency rules on his request to 2 The Board may follow a nonprecedential decision of the Federal Circuit when, as here, it finds its reasoning persuasive. See Morris v. Department of the Navy , 123 M.S.P.R. 662, ¶ 13 n.9 (2016). 3 reinstate his driving privileges, and we find no basis to disturb the initial decision. NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case, and 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 any5 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s6 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of 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/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Naylor_Christopher_E_DE-0752-20-0305-I-1_Final_Order.pdf	2024-09-18	CHRISTOPHER E. NAYLOR v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DE-0752-20-0305-I-1, September 18, 2024	DE-0752-20-0305-I-1	NP
499	https://www.mspb.gov/decisions/nonprecedential/Lamar_Walter_A_AT-1221-22-0460-W-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD WALTER A. LAMAR, JR., Appellant, v. DEPARTMENT OF THE AIR FORCE, Agency.DOCKET NUMBER AT-1221-22-0460-W-1 DATE: September 18, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Walter A. Lamar, Jr. , Macon, Georgia, pro se. Gregory Lloyd , Robins Air Force Base, Georgia, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member* *Member Kerner did not participate in the adjudication of this appeal. FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For the reasons set forth below, the appellant’s petition for review is DISMISSED as untimely filed without good cause shown. 5 C.F.R. § 1201.114(e), (g). 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). BACKGROUND The appellant, a former GS-9 Production Management Specialist, filed the instant IRA appeal, alleging that his involuntary retirement was the result of whistleblower reprisal. Initial Appeal File (IAF), Tab 1 at 1, 3; Petition for Review (PFR) File, Tab 1 at 2. The appellant included a copy of the final determination letter from the Office of Special Counsel (OSC). The administrative judge issued an order to show cause on the issue of jurisdiction. IAF, Tab 3. The appellant did not respond. After the agency moved to dismiss the appeal, the administrative judge issued an initial decision finding that the appellant failed to show that he exhausted his involuntary retirement with OSC and dismissing the appeal for lack of jurisdiction. IAF, Tabs 5, 10, Initial Decision (ID) at 1, 4. The decision notified the appellant that it would become final on August 19, 2022, unless a petition for review was filed by that date. ID at 4. On September 5, 2022, the appellant filed a copy of his OSC complaint form and a March 14, 2011 removal decision with the regional office. PFR File, Tab 1. Then, on January 13, 2023, and March 9, 2023, he filed two additional documents with the regional office, requesting that the Board “reopen” and review the initial decision. PFR File, Tabs 2-3. Accordingly, the regional office forwarded his submissions to Board for processing as a petition for review. PFR File, Tab 4 at 1. The Clerk of the Board subsequently notified the appellant that his September 5, 2022 submissions were being considered as a petition for review, and his January 13, 2023 and March 9, 2023 submissions as supplements to his petition for review. Id. The Clerk further notified the appellant that his petition for review appeared to be untimely and provided him with an opportunity to submit a motion requesting either to accept the filing as timely or waive the time limit for good cause. Id. at 1-2. The appellant has filed a timeliness motion,2 and the agency has moved to dismiss the petition for review as untimely. PFR File, Tabs 5-6.2 DISCUSSION OF ARGUMENTS ON REVIEW The petition for review is untimely filed. The initial decision indicated that the appellant’s petition for review had to be filed by August 19, 2022. ID at 4. However, the appellant did not file his petition for review until September 5, 2022, seventeen days after the deadline. PFR File, Tab 1. The Board’s regulations provide that a petition for review must be filed within 35 days of the issuance of the initial decision or, if the appellant shows that the initial decision was received more than 5 days after the date of issuance, within 30 days after the date he received the initial decision. 5 C.F.R. § 1201.114(e). The appellant is registered as an e-filer and, therefore, is deemed to have received the administrative judge’s orders on the date of electronic submission, pursuant to 5 C.F.R. § 1201.14(m)(2) (2022). Rivera v. Social Security Administration, 111 M.S.P.R. 581, ¶ 5 (2009); IAF, Tab 1 at 2, Tab 7. Further, as an e -filer, the appellant was responsible for monitoring his case activity at e-Appeal to ensure that he received all case -related documents. 5 C.F.R. § 1201.14(j)(3) (2022). We deem the appellant to have received the initial decision on July 15, 2022, the date it was electronically submitted. ID at 1; IAF, Tab 7. His deadline for filing a petition for review was 35 days later, on August 19, 2022. PFR File, Tab 4 at 2. Therefore, the appellant’s September 5, 2022 petition for review was untimely filed by 17 days. 2 The appellant filed a motion to accept filing as timely and/or ask the Board to waive or set aside the time limit over 7 months after the deadline set by the Clerk’s Office, and he offers no explanation for its untimeliness. PFR File, Tabs 4, 6. We therefore decline to consider it in deciding the issue of the timeliness of the appellant’s petition for review. See Wiggins v. Department of the Air Force, 113 M.S.P.R. 443, ¶ 8 (2010) (finding that, in the absence of a motion showing good cause for an untimely filing, the Board may exercise its discretion to decide the issue based on the existing record); 5 C.F.R. § 1201.114(f). 3 The appellant has not demonstrated good cause for his untimely filed petition for review. In his petition for review, the appellant argues that he requested an extension and encountered “a series of obstacles” that prevented him from timely filing a copy of his OSC complaint, which he submitted to the Board on review. PFR File, Tab 2 at 1. The Board will waive its filing deadline only upon a showing of good cause for the delay in filing. 5 C.F.R. §§ 1201.114(f)-(g). To establish good cause for an untimely filing, a party must show that he exercised due diligence or ordinary prudence under the particular circumstances of the case. Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184 (1980). The Board will consider the length of the delay, the reasonableness of his excuse and his showing of due diligence, whether he is proceeding pro se, and whether he has presented evidence of the existence of circumstances beyond his control that affected his ability to comply with the time limits or of unavoidable casualty or misfortune which similarly shows a causal relationship to his inability to timely file his petition. Moorman v. Department of the Army, 68 M.S.P.R. 60, 62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table). The discovery of new evidence may constitute good cause for waiver of the Board’s filing deadline if the evidence was not readily available before the close of the record below and is of sufficient weight to warrant an outcome different from that of the initial decision. Minnich v. Office of Personnel Management, 63 M.S.P.R. 573, 575 (1994), aff’d per curiam, 53 F.3d 348 (Fed. Cir. 1995) (Table). Applying the Moorman factors, we find that the appellant has failed to establish good cause for his untimely petition for review. Although the appellant is proceeding pro se, his 17-day delay in filing is not minimal. See Rivera, 111 M.S.P.R. 581, ¶¶ 6-7 (declining to excuse a pro se appellant’s 5-day delay in filing a petition for review allegedly caused by the loss of electricity during a portion of the filing period). We also find unpersuasive his allegation that he requested an extension. There is no record of the appellant’s alleged request for4 an extension of time. The appellant did not provide a copy of his request, indicate to whom he made it, or allege that he made the request on or before the filing deadline. See Siler v. U.S. Postal Service, 76 M.S.P.R. 10, 14 (1997) (finding the appellant’s attorney’s allegation that he left a telephone message for the Clerk of the Board regarding “snags” that prevented him from preparing his petition for review did not establish that the appellant requested an extension of time on or before the filing deadline). To the extent the appellant may be arguing that he experienced technical difficulties in filing his petition for review, we find that any technical difficulties he encountered do not outweigh his failure to show that he acted with due diligence in filing his pleading. In assessing a party’s allegation that an untimely filing was due to technical difficulties, the Board will consider the particular circumstances of the case. Compare Wiggins v. Department of the Air Force, 113 M.S.P.R. 443, ¶¶ 7, 9 (2010) (finding good cause when the pro se appellant created his petition for review in e-Appeal before the deadline but did not complete the electronic submission until 4 minutes after the filing deadline), Boykin v. U.S. Postal Service, 104 M.S.P.R. 460, ¶ 6 (2007) (excusing a 1-day delay in filing when an appellant’s representative reported making multiple attempts to timely file and the Board’s records reflected a high incidence of users reporting problems with the e-Appeal system during the date in question), and Social Security Administration v. Price, 94 M.S.P.R. 337, ¶ 7 (2003) (finding good cause when agency counsel began sending the petition via facsimile on the due date but, due to technical problems, failed to complete the submission until 34 minutes past the filing deadline), aff’d, 398 F.3d 1322 (Fed. Cir. 2005), with Palermo v. Department of the Navy, 120 M.S.P.R. 694, ¶¶ 5-10 (2014) (declining to excuse a 7-day delay for claimed difficulties with e-Appeal when, inter alia, the appellant’s representative was familiar with e -Appeal and failed to submit a motion showing good cause), and Gaetos v. Department of Veterans Affairs,5 121 M.S.P.R. 201, ¶ 6 (2014) (declining to excuse a petition that was untimely by 3.5 hours when the petitioner failed to establish a good reason for the delay). Based on the facts of this case, we find that the appellant has not established good cause for his untimeliness. As set forth above, the record does not indicate that he requested an extension nor that he attempted to timely file his petition by an alternate method. See 5 C.F.R. § 1201.14(f) (2022) (“A party or representative who has registered as an e-filer may file any pleading by non- electronic means, i.e., via postal mail, fax, or personal or commercial delivery.”). Instead, he delayed and chose to hand -deliver his pleading on September 5, 2022, which was 17 days after the filing deadline. PFR File, Tab 1 at 1; see generally Snipes v. Office of Personnel Management, 32 M.S.P.R. 66, 67 (finding no good cause for the delay when the appellant failed to request an extension of time from the Board to obtain a report known to the appellant before the expiration of the filing period), aff’d, 831 F.2d 306 (Fed. Cir. 1987) (Table). Under these circumstances, the appellant has not shown that he acted with due diligence in filing his pleading. To the extent the appellant argues that his ability to now submit his OSC complaint shows good cause, we are also not persuaded. PFR File, Tab 2 at 1. The appellant did not show that his OSC complaint, which was necessarily filed with OSC before its April 19, 2022 final determination letter, was not available before the record closed on July 14, 2022. IAF, Tab 1 at 6, Tab 3 at 8. Therefore, we find that the appellant has not presented new evidence on which to grant review of the initial decision. Mills v. U.S. Postal Service, 119 M.S.P.R. 482, ¶¶ 3, 5 (2013) (finding the Board would not consider the appellant’s EEO report of investigation because the appellant failed to show that the information in the documents was unavailable before the close of record). Accordingly, we dismiss the petition for review as untimely filed. This is the final decision of the Merit Systems Protection Board regarding the timeliness6 of the petition for review. The initial decision remains the final decision of the Board regarding this IRA appeal. NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the 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). 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.7 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 420 (2017). If you have a representative in this case, and 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 on8 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or9 other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 .S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.11	Lamar_Walter_A_AT-1221-22-0460-W-1_Final_Order.pdf	2024-09-18	null	AT-1221-22-0460-W-1	NP

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