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4,000 | https://www.mspb.gov/decisions/nonprecedential/CLARK_MARQUISE_A_CH_0752_15_0288_I_2_FINAL_ORDER_1971274.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARQUISE A. CLARK,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
CH-0752 -15-0288 -I-2
DATE: October 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Randall C. Cahill , Esquire, Saint Louis, Missouri, for the appellant.
Darrel C. Waugh , Esquire, Stockton, California, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Me mber
FINAL ORDER
¶1 The appellant has filed a petition for revie w of the initial decision, which
sustained his removal . Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, wa s not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant was a GL -08 Correctional Officer, Senior Officer Specialist,
for the agency’s Federal Bureau of Prisons, stationed at Federal Correctional
Institution Greenville. Clark v. Department of Justice , MSPB Docket
No. CH-0752 -15-0288 -I-1, Initial Appeal File (IAF), Tab 1 at 1, Tab 13 at 31.
The agency imposed the appellant’s removal for unprofessional conduct for his
failure to provide a urine sample and absence without leave (AWOL) . IAF,
Tab 13 at 33-35. The appellant filed a formal complaint of discrimination in
which he asserted that the action constituted race, age, and sex discrimination.
Id. at 9. The agency issued a final agency decision finding no discrimination. Id.
at 12-28. The appellant then filed the instant appeal challenging the removal.
IAF, Tab 1.
¶3 The administrative judge issued an initial decision sustaining the removal.
Clark v. Department of Justice , MSPB Docket No. CH -0752 -15-0288 -I-2, Refiled
Appeal File (RAF) , Tab 25, Initial Decision ( I-2 ID). The appellant filed a
petition for review , and the agency responded in opposition to his petition.
Petition for Review (PFR) File , Tabs 1, 3.
3
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge properly sustained the charge of failure to provide a
urine sample.
¶4 The appellant challenges the administrative judge’s decision to sustain the
failure to provide a urine sample charge because he assert s, as he did below , that
his position was not subject to random drug testing, the individuals who requested
that he submit the urine sample did not have the authority to do so, and there were
other suspicious circumstances regarding the c ollection of the sample. PFR File,
Tab 1 at 12-13, 16 -24, 26-27. The administrative judge found that the appellant’s
position was subject to random drug testing because the agency performs such
testing under its Drug Free Work Place Program, the deciding official and other
witnesses testified that they had undergone random drug testing, the appellant’s
testimony indicated that he knew he could be subject to random drug testing , and
he did not otherwise provide any reason that his position was exempt from
random drug testing . I-2 ID at 6; Hearing Transcript (HT) at 35-37 (testimony of
the appellant) , 114 (testimony of the appellant’s supervisor) , 183 (testimony of
the Health Service Administrator) , 283, 314 (testimony of the deciding official) ;
IAF, Tab 13 at 145 -49.
¶5 Each agency is required to establish a drug testing program for its
employees . Executive Order 12,564, 51 F ed. Reg. 32,889 (Sept. 15, 1986) . The
extent to which employees are tested and the criteria for testing is to be
determined by each age ncy, taking into account factors such as the nature of the
agency ’s mission and the duties of its employees . Id. The drug testing program
for the Federal Bureau of Prisons is governed by Program Statement 3735.04,
Drug Free Workplace (Jun e 30, 1997). IA F, Tab 13 at 138 -54. Under t his
program, testing -designated positions subject to random drug tests include
“positions assigned to locations where employees may establish eligibility for
Federal law enforcement retirement.” Id. at 145 -46. W e find that the appellant
satisfied this criterion because all Federal Bureau of Prison employees are, by
4
statute, eligible for law enforcement retirement after meeting the age and service
requirements of 5 U.S.C. § 8412 (d). 5 U.S.C. § 8401 (17)(D)(i) . In fact, the
appellant’s Standard Form 50 indicates that his retirement plan was “M,”
described as “FERS AND FICA SPECIAL,” RAF , Tab 13 at 31 , which reflects a
law enforcement officer or firefighter retirement plan . See Office of Personnel
Management, CSRS and FERS Handbook ,2 Payroll Office Reporting of
Withholdings and Contributions , ch. 80, § 80A5.1 -3 (Apr. 1998), available at
https://www.op m.gov/retirement -services/publications -forms/csrsfers -
handbook/c080.pdf . We therefore agree with the administrative judge that the
agency correctly identified the appellant’s p osition as a testing -designated
position.
¶6 The administrative judge next found that the appellant was ordered to
provide the sample by authorized individuals. I -2 ID at 6 -9. Under the agency’s
policy , only Health Service Administrators (HSAs) and Assistant HSAs are
authorized to collect urine samples . IAF, Tab 13 at 144. The appellant claimed
that the Inmate Systems Officer , and not the HSA, requested to take his urine
sample. Id. at 73-74. T he administrative judge found that the appellant was not
credible as to this point because his version of even ts was contradicted by other
witness testimony and by documentary evidence and was inherently improbable .
I-2 ID at 6-8; HT a t 119-20 (testimony of the appellant’s supervisor) , 196-97
(testimony of the HSA) , 440-43 (testimony of the Inmate Systems Officer ); IAF,
Tab 13 at 54, 57, 66, 72-74. Thus, she found that the HSA , who was authorized
to do so, requested the sample. I-2 ID at 8. She also found that the appellant’s
supervisor had the authority to order him to provide the sample. I -2 ID at 8-9.
The appellant argue d that his supervisor did not have such authority because his
shift had ended 5 minutes prior to his order , but the administrative judge found
that, because he was on the agency premises and performing work from his
2 The CSRS and FERS Handbook is a public document, of which we take administrative
notice. See Azdell v. Office of Personnel Management , 88 M.S.P.R. 319 , 323 ( 2001 ).
5
previous shift , the supervisor had the necessary authority . I-2 ID at 9 ; HT at 312
(testimony of the deciding official) .
¶7 The appellant has provided no basis for disturbing the administrative
judge’s finding s that he was subject to random drug testing and that agency
offici als had the authority to order him to provide a sample to conduct such
testing. We also have considered the appellant’s claims of unusual circumstances
surrounding the request f or a sample. PFR File, Tab 1 at 18-19, 22 -23, 26 -27.
However, we find that t hese claims, as well as his previous claims, do not provide
a basis for disturbing the initial decision . See Broughton v. Department of Health
& Human Services , 33 M.S.P.R. 357 , 359 (1987) (finding that mere disagreement
with the administrative judge ’s well -reasoned findings provides no basis for
disturbing the initial decision ).
¶8 Next, the appellant asserts, as he did below, that he should not have been
required to obey the agency’s order to provide a urine sample because doing so
would have been dangerous . PFR File, Tab 1 at 22 -24. He alleged that, a s an
African American, he feared being confronted late at night by a large group of
Caucasian officers , and he was nervous about certain accusations if he provided a
urine sample to a Caucasian female employee . Id. Absent unusual
circumstances, such as when obedience would cause him irreparable harm or
place him in a clearly da ngerous situation or when the instructions are clearly
unlawful, an employee must first comply with an instruction and then, if he
disagrees with them, register his complaint or grievance later. Pedeleose v.
Department of Defense , 110 M.S.P.R. 508 , ¶¶ 16, 18, aff’d , 343 F. App’x 605
(Fed. Cir. 2009); Larson v. Department of the Army , 91 M.S.P.R. 511 , ¶ 21
(2002). We agree with the administrative judge that the appellant has not shown
that he was entitled to disregard the instructions because he did not est ablish that
compliance with the instructions would have cause d him irreparable harm or
6
place d him in a clearly dangerous situation .3 See Larson , 91 M.S.P.R. 511 , ¶ 21
(holding that a n appellant’ s subjective and unsupported apprehension of danger
does not justify his refusal to perform his duties ); I-2 ID a t 10-11.
The administrative judge properly sustained the AWOL charge.
¶9 The appellant also challenges the administrative judge’s decision to sustain
the AWOL charge because he left the agency premises after being sick and to
avoid a dangerous situation and thus argues that he should have been placed in a
sick leave status . PFR File, Tab 1 at 30 -31. To prove an AWOL charge , an
agency must show that the employee was absent without authorization and, if the
employee requested leav e, that the request was properly denied. Savage v.
Department of the Army , 122 M.S.P.R. 612 , ¶ 28 n.5 (2015) (clarifying that, if an
employee requested leave, the agency must show that the request was properly
denied to sustain an AWOL charge) , overruled in part by Pridgen v. Office of
Management & Budget , 2022 MSPB 31 , ¶¶ 23 -25. Here, the appellant’s
supervisor testified that, despite any mistaken notation to the contrary, he did not
place the appellant on sick leave on the day in que stion and did no t authorize his
absence. HT at 123-25 (testimony of the appellant’s supervisor) . Thus, we agree
that the appellant was absent and this absence was not authorized. I-2 ID at 13.
¶10 An AWOL charge will not be sustained, however, if an employe e presents
administratively acceptable evidence showing that he was incapacitated for duty
during the relevant time period , and he has sufficient sick leave to cover the
period of absence . Valenzuela v. Department of the Army , 107 M.S.P.R. 549 , ¶ 9
(2007) . We agree with the administrative judge that the appellant did not present
3 To the extent that the appellant’s challenges regarding the circumstances surrounding
the collection of the sample constitute a claim of harmful error, we find that he has
failed to establish this claim because he has not show n how such circumstances woul d
have caused the agency to reach a different conclusion than the one it would have
reached absent the alleged error . See Forte v. Department of the Navy , 123 M.S.P.R.
124, ¶ 19 (2016) (finding that a specimen collector’s alleged failure to have the
appellant sign a vial containing his urine sample before leaving the testing room did not
constitute harmful error).
7
any such documentation, and th us his absence could n ot be excused on this basis.
I-2 ID at 13. Further, we do not find persuasive the appellant’s argument that he
was absent because of a perceived danger. See Proctor v. Equal Employment
Opportunity Commission , 27 M.S.P.R. 163 , 168 -69 (1985) ( finding that, when an
employee fail ed to show danger of death or serious injury, the employee ’s AWOL
and r efusal to return to work warrant ed an adverse action) . Accordingly, we find
that the administrative judge properly sustained the AWOL charge. I -2 ID at 13.
We agree that the appellant has not shown that the deciding official was biased ,
that he engaged i n ex parte communications , or that he committed a due process
violation by considering the appellant’s lack of remorse .
¶11 In support of his claim that the deciding official was biased, the appellant
asserts that the deciding official led a conspiracy to set him up to be subjected to
a nonrandom drug test. PFR File, Tab 1 at 24 -25. We disagree with the
appellant’ s general characterization, which is not supported by the record. We
also find that the deciding official’s involvement in order ing the drug testin g did
not constitute an intolerably high risk of unfairness to the appellant and thus find
no due process violation in this respect . See Holton v. Department of the Navy ,
123 M.S.P.R. 688 , ¶ 31 (2016) (finding that the fact that the deciding official was
also the official that had granted permission for t he agency to perform the
appellant’s drug testing did not constitute a due process violation) , aff’d ,
884 F.3d 1142 (Fed. Cir. 2018) .
¶12 The appell ant next argues that the deciding official engaged in improper
ex parte communication s with the proposin g official. PFR File, Tab 1 at 27-28.
To the contrary , the proposing official email ed the deciding official and others
stating that, if the appellant reports to work, he is to remain in the front lobby or
computer area until otherwise authorized to proceed . I-2 ID at 16. We find that
this email does not contain any new , let alone material , information .
Furthermore, the appellant has not identified any communication that included
new and material evidence , and thus we agree with the administrative judge that
8
the deciding official did not engage in improper ex parte communication.
Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368 , 1376 (Fed. Cir.
1999 ).
¶13 The appellant asserts that the deciding official violated his right to due
process because he considered the lack of remorse as expressed in the response to
the proposal without notification that he would consider this factor . PFR File,
Tab 1 at 28; HT at 255 (testimony of the deciding official) ; IAF, Tab 13 at 33 -34,
37-48. Put another way, the appellant argues that he was not notified that “if he
showed remorse or if he stayed silent, his chances of removal would be
mitigated.” RAF, Tab 20 at 26 n.4. We find no violation of due process .
Principles of due process require that a deciding official consid er an employee’s
response to a proposal notice, but they do not prevent him from rejecting those
arguments in rendering a decision. An employee is not entitled to know in
advance the weight that the deciding official will attach to his arguments, as it
would be impossible for the deciding official to know in advance what the
employee would argue. See Grimes v. Department of Justice , 122 M.S.P.R. 36 ,
¶¶ 12-13 (2014). We find that, in determining the penalty, the deciding official
properly conside red the appellant’s lack of remorse in his response.4 See Alberto
v. Department of Veterans Affairs , 98 M.S.P.R. 50 , ¶ 10 (2004) (considering that
the appellant lacked the potential for rehabilitation given his lack o f remorse for
his misconduct as demonstrated by his written reply in which he essentially
attempted to blame his accusers for his actions ).
The removal penalty is reasonable .
¶14 The appellant argues that the administrative judge should have mitigated the
pena lty because he had 18 years of service , the deciding official did not consider
4 Although the appell ant has not presented any such arguments, we have considered
whether the appellant has shown harmful error based upon the deciding official’s
aforementioned actions , but we find no evidence of such error. See Stone , 179 F.3d
at 1377 -78; Ronso v. Departmen t of the Navy , 122 M.S.P.R. 391 , ¶ 16 (2015).
9
the unusual circumstances surrounding the case, random urine tests only recently
began at the facility and an employee had never before refused a test , and, as an
African -Americ an male, he feared for his safety when, around midnight, he was
asked to provide the sample to a Caucasian female surrounded by many Caucasian
guards. PFR File, Tab 1 at 29 -32. Whe n, as here, all of the agency ’s charges
have been sustained, the Board wil l 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. Portner v.
Department of Justice , 119 M.S.P.R. 365 , ¶ 10 (2013) , overruled on other
grounds by Singh v. U.S. Postal Service , 2022 MSPB 15 , ¶ 17. The
administrative judge sustained the penalty because she found, as the deciding
official did, that , despite th e appellant’s 18 years of service and good work
record, considering the fact that the deciding official lost confidence in him, the
seriousness of his misconduct, the nature of his position, and his evident lack of
potential for rehabilitation, the decidin g official did not err in imposing the
penalty of removal. I-2 ID at 26. We agree that the penalty is reasonable under
the circumstances. See Howarth v. U.S. Postal Service , 77 M.S.P.R. 1 , 7-8 (1997)
(sustaining the appellant’s removal for refusing to undergo alcohol testing).
The appellant has not otherwise provided a reason for disturbing the initial
decision.
¶15 In addition , the a ppellant asserts that the administrative judge erred by
asking leading questions of agency witnesses, did not consider his hearing
exhibits, was biased when she gave greater weight to certain agency
documentation, and should have imposed an adverse evident iary inference against
the agency for failing to preserve a copy of its video surveillance from the day in
question. PFR File, Tab 1 at 13, 20 -21, 30, 32 . Even assuming that the
administrative judge improperly asked leading questions, the appellant has n ot
explained how any error in this respect would have affected the outcome of this
appeal , and thus this argument does not provide a basis for disturbing the initial
10
decision . See Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282
(1984). Additionally, the appellant’s general allegation of bias is not sufficient to
rebut the presumption of the adm inistrative judge ’s honesty and integrity. See
Vaughn v. Department of the Treasury , 119 M.S.P.R. 60 5, ¶ 19 (2013); Oliver v.
Department of Transportation , 1 M.S.P.R. 382 , 389 (1980). Further, we agree
with the administrative judge that the agency had no reason to anticipate t he
appellant’s request for the video in question. I-2 ID at 17 -18. Thus, we find no
reason to draw an adverse evidentiary inference against the agency. Cf.
Kirkend all v. Department of the Army , 573 F.3d 1318 , 1327 (Fed. Cir. 2009)
(finding that the Board should have drawn adverse inferences against the agency
based upon its negligent destruction of relevant documents) .
¶16 Lastly, we have considered the appellant’s argument that the administrative
judge erred in not considering the exhibits that he request ed to present after the
hearing , stating that they “tell a totally different tale of what happened .”
PFR File, Tab 1 at 32 . At th e hearing, the administrative judge denied the
appellant ’s motion to submit additional exhibits because she found no good cause
for the appellant’s untimely filing of the exhibits . HT at 493-94, 502 -04 (rulings
of the administrative judge) . An administra tive judge has broad discretion to
refuse to consider any motion or other pleading that is not filed in a timely
fashion. 5 C.F.R. § 1201.43 (c). Furthermore, t he appellant has not descr ibed
how the disallowed exhibits would affect the result of the appeal. Accordingly,
he has not shown that the administrative judge abused h er broad discretion in
excluding evidence or that any such error prejudiced his substantive rights .
Vaughn , 119 M.S.P.R. 605 , ¶ 14.
11
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. F ailure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order mu st file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
12
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which i s
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. I f the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
13
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you su bmit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via com mercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleb lower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activi ties listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
14
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of is suance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court a t the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscour ts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endo rses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6 The original statutory provision that provided for judicial review of certain
whistleblower clai ms by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certa in whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
15
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CLARK_MARQUISE_A_CH_0752_15_0288_I_2_FINAL_ORDER_1971274.pdf | 2022-10-21 | null | CH-0752 | NP |
4,001 | https://www.mspb.gov/decisions/nonprecedential/DRAKE_DEBRA_SF_0432_17_0272_I_1_REMAND_ORDER_1971285.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DEBRA DRAKE,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency.
DOCKET NUMBER
SF-0432 -17-0272 -I-1
DATE: October 21, 2022
THIS ORDER IS NONPRECEDENTIAL1
Kevin Keaney , Esquire, Portland, Oregon, for the appellant.
Anna Roe , Esquire, Portland, Oregon, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Member Limon recused himself and
did not participate in the adjudication of this appeal.
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained her removal from the agency for unacceptable performance under
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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Western Regional Office for further adjudication in accordance with this Remand
Order and Santos v. National Aeronautics & Space Administration , 990 F.3d 1355
(Fed. Cir. 2021).
BACKGROUND
¶2 The appellant worked for the agency as an Outdoor Recreation Planner.
Initial Appeal File (IAF), Tab 6 at 4. In August 2016, the agency placed her on a
30-day performance improvement plan (PIP) due to her unacceptable performance
in three critical elements of her performance standards. Id. at 51 -55. To improve
her performance to the minimally successful level and pass the PIP , the appellant
could fail to complete a task as described in the PIP no more than once under
each critical element .2 Id. at 53 -55. When the PIP concluded, the appellant had
not raised her level of performance to at least minimally successful on two
critical elements, as she failed two tasks in the recreation permitting critical
element and failed three tasks in the public events critical element . Id. at 42 -45.
These failures related to missing established deadlines and not showin g
satisfactory progress on assignments. Id. As a result, the agency removed the
appellant. Id. at 4-10.
¶3 The appellant filed a Board appeal contesting her removal. IAF, Tab 1.
After holding the requested hearing, the administrative judge issued an in itial
decision sustaining the appellant’s removal for unacceptable performance, finding
that the agency met its burden of proving by substantial evidence each of the
required elements of a c hapter 43 removal action. IAF, Tab 19, Initial Decision
(ID). Th e appellant filed a petition for review , and the agency responded in
opposition. Petition for Review ( PFR ) File, Tabs 1, 3 .
2 Minimally successful is the lowest level of acceptable performance in the appellant’s
performance standards. IAF, Tab 6 at 76 -77.
3
DISCUSSION OF ARGUME NTS ON REVIEW
¶4 At the time the initial decision was issued, the Board’s case law stated that,
in a performance -based action under 5 U.S.C. chapter 43, an agency must
establish by substantial evidence that: (1) O PM approved its performance
appraisal system; (2) the agency communicated to the appellant the performance
standards and critical elements of h er 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 h er performance during the appraisal period and
gave h er a reasonable opportunity to improve; and (5) the appellant’s
performance remained unacceptable in at least one critical element. White v.
Department of Veterans Affairs , 120 M.S.P.R. 405 , ¶ 5 (2013).3 As discussed
below, we discern no basis to disturb the administrative judge’s findings. As
discussed at the end of our analysis, this appeal must nevertheless be remanded t o
address an additional element of the agency’s burden of proof as set forth in
Santos , 990 F.3d at 1360 -61.
The appellant has not established any error in the administrative judge’s finding
that the agency provided her with a reasonable opportunity to dem onstrate that
her performance improved to an acceptable level.
¶5 On review, the appellant only challenges the administrative judge’s finding
that the agency provided her with a reasonable opportunity to demonstrate that
her performance improved to an accepta ble level. PFR File, Tab 1 at 4 -6.
Specifically, the appellant contends that her opportunity to improve was not
reasonable since it was possible for her to fail the PIP before the full 30 days
elapsed due to the interim deadlines on some of the required tasks. Id. Regarding
the other elements of a chapter 43 action, the appellant does not refute the
administrative judge’s findings, and we discern no reason to disturb the initial
3 Although White provides tha t criterion 3 requires that performance standards be valid
under 5 U.S.C. § 4302 (b)(1), the National Defense Authorization Act for Fiscal Year
2018 redesignated subsection 4302(b) as subsection 430 2(c). Pub. L. No. 115 -91,
§ 1097(d)(1)(A), 131 Stat. 1283, 1619 (2017).
4
decision, as it is supported by the evidence, the inferences are appropriat e, and
the credibility determinations are reasoned.4 See Clay v. Department of the Army ,
123 M.S.P.R. 245 , ¶ 6 (2016); see also Broughton v. Department of Health
& Human Services , 33 M.S.P.R. 357 , 359 (1987).
¶6 When assessing whether an agency afforded an empl oyee a reasonable
opportunity to demonstrate acceptable performance, relevant factors include the
nature of the duties and responsibilities of the employee ’s position, the
performance deficiencies involved, and the amount of time given to the employee
to demonstrate acceptable performance. See White , 120 M.S.P.R. 405 , ¶ 5 . The
Board also has considered the level of assistance provided to the employee during
the PIP period. See Bare v. Department of Health & Human Services ,
30 M.S.P.R. 684 , 687 -88 (1986).
¶7 In this instance, the agency informed the appellant through the PIP notice o f
her unacceptable performance i n three critical elements, listed the required tasks
that she had to perform to demonstrate minimally successful performance, and
informed her that , if she did not improve her performance on each of the critical
elements to the minimally successful level at the conclusion of the PIP , her
removal was possible. IAF, Tab 6 at 51 -55. The appellant served as an Outdoor
Recreation Planner for 15 years and had fam iliarity with many of the tasks
assigned to her during the PIP period. Hearing Compact Disc ( HCD ) (testimony
of first-line supervisor ), (testimony of the appellant). The tasks correlated with
the core duties of the appellant ’s position and broke down lar ger assignments into
short -term, measurable steps. IAF, Tab 6 at 53 -55; HCD (testimony of first-line
supervisor). The Board has held that a reasonable opportunity to demonstrate
acceptable performance can contain interim deadlines that expire before the end
of a PIP period. See, e.g. , Luscri v. Department of the Army , 39 M.S.P.R. 482 ,
4 The administrative judge did not sustain the agency’s allegation that the appellant
failed a third task under the public events critical element. ID at 21 -22. The agency
does not contest this finding on review , and we find no reason to discuss it further.
5
487, aff’d , 887 F.2d 1094 (Fed. Cir. 1989) (Table) . The evidence, which includes
the hearing testimony from the appellant ’s first -line supervisor, supports the
finding that the tasks and associated deadlines set within the 30 -day PIP period
provided the appellant with a reasonable opportunity to show improv ement to a
minimally successful level. HCD (testimony of first-line supervisor). The
administrative judge found the appellant’s first -line supervisor’s testimony
“credible and compelling” when he described how the deadlines within the PIP
set tasks into measurable steps, providing the appellant with the opportunity to
display improvement. ID at 9; see HCD (testimony of first -line supervisor). The
appellant does not raise any issues with the credibility of her first -line
supervisor’s hearing testimony. The Board must defer to an administrative
judge ’s credibility dete rminations when they are based, explicitly or implicitly,
on ob serving the demeanor of a testifying witness. Haebe v. Department of
Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002). The Board may overturn such
determinations only when it has sufficient ly sound reasons . Id. There is no
sufficiently sound reason for doing so in this matter .
¶8 The appellant’s yearly standards described minimally successful
performance on each critical element as failing to perform at the fully successful
level on two occasions through the entire performance appraisal year. IAF, Tab 6
at 66 -67, 70 -71. T he PIP, in contrast, permitted the appellant to attain minimally
successful performance with one failure in a month. Id. at 53 -55. Thus, the
standard that the agency set forth in the PIP provided the appellant a greater
margin for error to perform at the minimally successful level compared to the
standard for the entire appraisal year, further establishing the reasonableness of
the PIP period. Additionally, the appellant’s first -line supervisor provided her
assistance by meeting with her weekly during th e PIP period to discuss her
performance, provide feedback, and answer questions. Id. at 47 -50. This also
supports the finding that the agency afforded the appellant a reasonable
opportunity to improve. See Bare , 30 M.S.P.R. at 687-88. Finally, the Boar d has
6
held that a 30-day PIP period is sufficient to satisfy the reasonable opportunity to
demonstrate acceptable performance requirement. See Melnick v. Department of
Housing & Urban Development , 42 M.S.P.R. 93 , 101 (1989), aff’d , 899 F.2d 1228
(Fed. Cir. 1990) (Table).5
Remand is necessary to afford the parties an opportunity to su bmit evidence and
argument regarding whether the appellant’s placement on a PIP was proper.
¶9 Although the appellant has identified no basis for us to disturb the
administrative judge’s findings below, we nonetheless must remand this appeal
for another re ason. During the pendency of the petition for review in this case,
the U.S. Court of Appeals for the Federal Circuit held in Santos , 990 F.3d
at 1360 -61, that in addition to the five elements of the agency’s case set forth in
the initial decision, the age ncy must also justify the institution of a PIP by
proving by substantial evidence that the employee’s performance was
unacceptable prior to the PIP. The Federal Circuit’s decision in Santos applies to
all pending cases, including this one, regardless of w hen the events took place.
Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 16. Although the record
in this appeal already con tains evidence suggesting that the appellant’s
performance leading up to the PIP was indeed unacceptable, we remand the
appeal to give the parties the opportunity to present argument and additional
evidence on whether the appellant’s performance during the period leading up to
the PIP was unacceptable in one or more critical elements. See id., ¶¶ 15-17. On
5 On review, the appellant argues that the Board’s decision in Bare supports her
position that the agency did not afford her with a reasonable opportunity to demonstrate
acceptab le performance. PFR File, Tab 1 at 4 -6. The appellant’s argument is
inapposite to the holding in Bare and provides no basis to overturn the initial decision.
The administrative judge in this case considered many of the same factors that the
Board did in Bare when determining that the agency provided the appellant with a
reasonable opportunity to demonstrate acceptable performance, including the amount of
assistance provided, the nature and duties of the position involved, and the cited
performance defici encies. See Bare , 30 M.S.P.R. at 688 -89; ID at 7 -12.
7
remand, the administrative judge shall accept argument and evidence on this issue
and shall hold a supplemental hearing if appropriate. Id., ¶ 17.
¶10 The administrative judge shall then issue a new initial decision consistent
with Santos . See id. If the agency makes the additional showing required under
Santos on remand that the appellant’s performance in at least one critical element
was at an unacceptable level prior to her placement on the PIP, the administrative
judge may incorporate her prior findings on the other elements of the agency’s
case in the reman d initial decision. See id.
ORDER
¶11 For the reasons discussed above, we remand this case to the Western
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | DRAKE_DEBRA_SF_0432_17_0272_I_1_REMAND_ORDER_1971285.pdf | 2022-10-21 | null | SF-0432 | NP |
4,002 | https://www.mspb.gov/decisions/nonprecedential/DE_VANE_DARRELL_COUNCIL_DC_0752_17_0128_I_2_FINAL_ORDER_1971340.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DARRELL COUNCIL DE V ANE,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DC-0752 -17-0128 -I-2
DATE: October 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tanya White -Anderson , Fayetteville, North Carolina, for the appellant.
Greg Allan Ribreau , Charlotte, North Carolina, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal and found that he failed to prove his affirmative defense of
religious discrimination. On review, the appellant argues that the agency failed to
accommodate his religious practice and the administrative judge erred by
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
permitting a witness to testify by telephone, along with several other alleged
procedural irregularities. Generally, we gran t 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 th e petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.2 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
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 The appellant’s motion for leave to file additional pleadings is denied because he has
not shown that the pleading he wishes to submit would be material to the outcome of
his appeal. Petition for Review File, Tab 4; see 5 C.F.R. § 1201.114 (a)(5), (k).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully fol low all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seek ing
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide fo r Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you m ay visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4
Board neither endorses the services provided by any attorney nor warrants t hat
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Boar d and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district cour t (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation b y a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can b e accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission ( EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. B ox 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for ju dicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal c ases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | DE_VANE_DARRELL_COUNCIL_DC_0752_17_0128_I_2_FINAL_ORDER_1971340.pdf | 2022-10-21 | null | DC-0752 | NP |
4,003 | https://www.mspb.gov/decisions/nonprecedential/SIMONS_SANITA_DENISE_DC_0752_15_1179_I_2_FINAL_ORDER_1971406.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SANITA DENISE SIMONS ,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
DC-0752 -15-1179 -I-2
DATE: October 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sanita Denise Simons , Stafford, Virginia, pro se.
Glenn E. Cason, Jr ., Esquire, Temple, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her involuntary resignation appeal for lack of Board jurisdiction .
Generally, we grant petitions such as this one only when: the initial decision
contains erroneous fi ndings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or th e initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due dil igence, was not available when the record
closed. See title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decis ion. 5 C.F.R.
§ 1201.113 (b).
¶2 Effective November 16, 2014, the appellant was appointed to a GS -12
Human Resources Specialist position with the agency. Simons v. Department of
Agriculture , MSPB Dock et No. DC -0752 -15-1179 -I-2, Appeal File (I-2 AF) ,
Tab 13 at 44. She resigned from that position effective September 20, 2015.
I-2 AF, Tab 17 at 10 -12. Thereafter, t he appellant filed a timely appeal with the
Board alleging that her resignation was invol untary. Simons v. Department of
Agriculture , MSPB Docket No. DC -0752 -15-1179 -I-1, Initial Appeal File, Tab 1 .
After the administrative judge dismissed the appeal without prejudice to allow her
to exhaust her equal employment opportunity complaint remedie s, the appellant
refiled her appeal. I-2 AF, Tab 1 , Tab 2 at 8. During the adjudication of the
refiled appeal, a question arose regarding whether the appellant was serving a
1-year probationary period at the time of her resignation. I-2 AF, Tab 15 at 1-3.
The administrative judge informed the appellant of the jurisdictional elements and
afforded the parties the opportunity to submit additional evidence and argument
concerning the appellant’s potential probationary status . Id. The appellant
responded t o the order, arguing that she was not serving in a probationary period
and that she was an “employee” with appeal rights. I -2 AF, Tab 16 at 4 -17.
3
¶3 Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismis sing the appeal, finding that the appellant was
serving in a probationary period at the time of her resignation and thus the Board
lacked jurisdiction over her involuntary resignation claim. I -2 AF, Tab 19, Initial
Decision (ID) at 4. The administrative judge held that none of the appellant’s
prior Federal service “tacked” on to her current service and that the appellant had
not proven that , even though she was a probationer, she was nonetheless an
“employee” with chapter 75 appeal rights because she coul d not demonstrate that
prior to he r resignation she completed 1 -year of “current continuous service”
under other than a tempo rary appointment limited to 1 year or less. Id.
¶4 On review, the appellant reassert s that she was not serving in a probationary
period at the time of her resignation and that she is an “employee” with Board
appeal ri ghts under 5 U.S.C. chapter 75. Simons v. Department of Agriculture ,
MSPB Docket No. DC -0752 -15-1179 -I-2, Petition for Review (I-2 PFR) File,
Tab 1 at 4, 17. The agency did not respond to the petition for review .2
¶5 An appellant who has not served a full year under her appointment can
show that she has completed her probationary period, and so is no longer a
probationer, by “tacking ” on prior service if: (1) t he prior service was rendered
immediately preceding the probationary appointment; (2) it was performed in the
same agency; (3) it was performed in the same line of work; and (4) it was
completed with no more than one break i n service of less than 30 days. Hurston
v. Department of the Army , 113 M.S.P.R. 34 , ¶ 9 (2010); 5 C.F.R. § 315.802 (b).
Here , the record reflects that the appellant’s prior service ended with her
resignation from a position with the U.S. Marine Corps on December 14, 2013 —
more than 1 1 months before her November 14, 2014 appointment at issue in this
2 In May 2018, the appellant filed a motion seeking a dismissal of this appeal without
prejudice for a period of 6 months. I-2 PFR File, Tab 3. We need not rule on this
motion as it is now moot. See Currier v. U.S. Postal Service , 72 M.S.P.R. 191 , 195
(1996) (outlining that mootness arises, inter ali a, when the issue presen ted is no longer
“live”).
4
appeal . I-2 PFR File, Tab 1 at 24; I -2 AF , Tab 13 at 39, 44. Additionally, none
of the prior service during the period from August 14, 2011 , through
December 14, 2013 , that the appellant claims should be tacked to her
probationary period was completed with the Department of Agriculture. I -2 AF,
Tab 13 at 32-43. Because the appellant’s prior service did not immediately
precede her probationary appointment, was not with the same agency, and
included a break in service of more than 30 days, her prior ser vice does not count
towards completing her probationary period. See Hurston , 113 M.S.P.R. 34 , ¶ 9;
5 C.F.R. § 315.802 (b).
¶6 Alternatively, an appellant can show that, while she may be a probationer,
she satisfies the definition of an “employee” in 5 U.S.C. § 7 511(a)(1)(A)(ii),
which requires that she “completed 1 year of current continuous service under
other than a temporary appointment limited to 1 year or less.” Hurston ,
113 M.S.P.R. 34 , ¶ 9. The appellant did not identify any other Federal service
during the 11-month period between her appointments w ith the Department of
Agriculture and the U.S. Marine Corps. Instead, she argue s that her period of
Federal service from August 14, 2011 , through December 14, 2013 , should
qualify as “current continuous service” sufficient to meet the requirements under
5 C.F.R. § 752.402 . I-2 PFR File, Tab 1 at 17. However, t he Board has held that
for competitive -service employees, “current continuous service” means a period
of employment or service immediately preceding an adverse action without a
break in Federal civilian employment of a workday. Ellefson v. Department of
the Army , 98 M.S.P.R. 191 , ¶ 14 (2005); see 5 C.F.R. § 752.402 . Because the
appellant only served approximately 11 months at the Department of Agriculture
and did not have any Federal service immediately preceding the alleged adverse
action (her constructive discharge), she does not meet the “current continuous
service” requirement necessary to satisfy the definition of “employee” under
5 U.S.C. § 7511 (a)(1)(A)(ii) .
5
¶7 Finally, t he appellant highlights a remark provided on one of the S tandard
Form 50s (SF-50) for her appointment to the Department of Agriculture position
indicating that she had completed he r probationary period . I-2 PFR File, Tab 1
at 17; I-2 AF, Tab 13 at 44. However, a remark in a subsequent SF-50 converting
the appellant’s term appointment to career -conditional status notes that the
appointment is “subject to completion of one year init ial probationary period
beginning 11/16/2014. ” I -2 AF, Tab 13 at 45 (emphasis removed) . A later
corrected SF-50 again indicates that her probationary period was complete. Id.
at 46.3 Notwithstanding the conflicting SF -50s included in the record, under
5 C.F.R. § 315.801 (a), a 1-year probationary pe riod is contemplated for
career -conditional appointments in the competitive service. Additionally, the
failure to inform an individual of h er probationary status, without more , does not
confer empl oyee status on the individual. Calixto v. Department of Defense ,
120 M.S.P.R. 557 , ¶ 1 7 n.6 (2014) (citing Phillips v. Department of Housing &
Urban Development , 44 M.S.P.R. 48 , 52 (1990) ). It is undispute d that at the time
the appellant resigned from her position on September 20, 2015, she had not
completed 1 year of service in her position with the Department of Agriculture.
I-2 AF, Tab 13 at 39, 44; Tab 17 at 10-12. As such, the app arent inconsistencies
on the SF -50s do not affect our analysis i n this appeal, or change the fact that the
appellant’s position was subject to a 1 -year probationary period , which she had
not completed at the time of her resignation . Hurston , 113 M.S.P.R. 34 , ¶ 2 n.*.
3 Yet a nother, later corrected SF-50 identifies the appointment as a “ TERM APPT
11/16/14 ,” suggesting that the appellant was employed in a term position and not a
career -conditional appointment. I-2 AF, Tab 13 at 4 8. In the initial decision, the
administrative judg e identified the appellant’s appointmen t as career condition al. ID
at 2. However, w e need not determine w hat kind of appointment the appellant was
completing when she resigned , since we find that she did not compl ete a 1 -year
probationary period and was not otherwise an “employee” with Board appeal rights.
6
¶8 Accordingly, for the reasons discussed above, we deny the appellant’s
petition for review and affirm the initial decision di smissing her involuntary
resignation appeal for lack of jurisdiction.
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. I f you wish to seek 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 y our case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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.
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 partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
8
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, o r other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you s ubmit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via co mmercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistle blower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
9
other protected activ ities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 subm it a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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 Fe deral 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.
Cont act information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsite s.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SIMONS_SANITA_DENISE_DC_0752_15_1179_I_2_FINAL_ORDER_1971406.pdf | 2022-10-21 | null | DC-0752 | NP |
4,004 | https://www.mspb.gov/decisions/nonprecedential/GRAYE_JEWEL_A_DC_0752_15_0591_I_1_FINAL_ORDER_1971439.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JEWEL A. GRAYE,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
DC-0752 -15-0591 -I-1
DATE: October 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jewel A. Graye , Washington, D.C., pro se.
Byron D. Smalley , Esquire, and Craig A. Corliss , Esquire, Washington,
D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Me mber
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained her 15 -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 dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or th e initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due dil igence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal , we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review . Except as expressly
MODIFIED by this Final Order to clarify the analysis of the appel lant’s evidence
of reprisal for filing complaints of discrimination , we AFFIRM the initial
decision.
BACKGROUND
¶2 The appellant is employed by the agency as a GS -14 Information
Technology Specialist. Initial Appeal File (IAF), Tab 5 at 10. Effective
March 16, 2015, she was suspended for 15 days based on two charges:
insubordination and failure to conscientiously perform assigned duties. Id. On
appeal, the administrative judge sustained the charges, found that the appellant
failed to prove her claim of re prisal for filing complaints of discrimination, and
affirmed the suspension. IAF, Tab 32, Initial Decision (ID) at 11 -22.
¶3 The appellant has filed a petition for review of the initial decision, the
agency has filed a response, and the appellant has filed a reply to the agency’s
response. Petition for Review (PFR) File, Tabs 3, 5 -6.
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant has failed to provide a basis for reversing the administrative
judge’s findings of fact.
¶4 On review, the appellant argues that the administrative judge erred when
she found that the appellant was notified of her need to attend an October 2014
3
MicroPact meeting shortly prior to its start. PFR File, Tab 3 at 8. The appellant
contends that, beca use her supervisor sent her the email notification from Texas
at 10:37 a.m. local time (Central), she did not receive it in Maryland until
11:37 a.m. local time (Eastern), since the two locations are in different time
zones. Id. at 8 -9. Assuming arguendo that the appellant is correct, the
administrative judge also found that the appellant was notified of her need to
attend MicroPact meetings in March 2014. ID at 12 -13. Accordingly, the
appellant’s argument provides us with no reason to disturb the admin istrative
judge’s finding that she inexcusably missed the October 2014 MicroPact meeting.
Id.
¶5 The appellant also argues that the administrative judge erred when she
found that the appellant absented herself without approval from a November 4,
2014 MicroPa ct meeting. PFR File, Tab 3 at 9 -10. The appellant contends that
her supervisor gave her approval to leave for 1 hour to go vote. Id. at 9-10.
Assuming arguendo that the appellant is correct, the administrative judge also
found that the appellant did n ot explain why she could not have voted at some
other time during the day such that she would not miss the meeting. ID at 14.
Accordingly, the appellant’s argument provides us with no reason to disturb the
administrative judge’s finding that she inexcusa bly missed the November 2014
MicroPact meeting. Id.
¶6 Furthermore, the appellant bases her arguments regarding her absence from
the MicroPact meetings noted above on evidence not submitted into the record
before it closed. PFR File, Tab 3 at 5 -6, 8-10, 32 -33. The Board generally will
only consider new and material evidence upon a showing that, despite the
petitioner’s due diligence, the evidence was not available when the record closed.
5 C.F.R. § 1201.115 (d). The appellant contends that her “system access was
terminated during her suspension” and that, after she regained access, “she
experienced intermittent software issues rendering her unable to locate and
retrieve certain emails and files until after the record had closed.” PFR File,
4
Tab 3 at 5. Because there is no indication that the appellant could not have
retrieved the documents using the Board’s discovery procedures, we find that she
has failed to show that the evidence previo usly was unavailable despite her due
diligence. See Ellis v. U.S. Postal Service , 121 M.S.P.R. 570 , ¶ 6 (2014).
Accordingly, we need not consider the evidence on review.
¶7 The appellant similarly asks the Board to reverse the administrative judge’s
finding that the appellant’s assertion that she could not have used certain
databases to complete an assignment was unpersuasive . PFR File , Tab 3 at 10 -11.
Notably, in her reply to the proposal notice and in her prehearing submission, she
stated that she used one of the databases to complete the assignment. IAF, Tab 5
at 21, Tab 24 at 8. Regardless of the contradictory nature of the appel lant’s
positions, however, it is apparent that she never raised this argument below. 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 pr eviously available despite the party’s due diligence. Holton v. Department
of the Navy , 123 M.S.P.R. 688 , ¶ 18 (2016) , aff’d, 884 F.3d 1142 (Fed. Cir.
2018) . Because the appellant made no such showing regarding this argument, we
will not consider it for the first time on review.
The appellant failed to demonstrate that the administrative judge incorrectly
applied the law to the facts of her case.
¶8 The appellant argues that the administrative judge erred in finding that she
failed to prove her claim of retaliation for fi ling equal employment opportunity
(EEO) complaints of discrimination because, as the administrative judge noted,
her second -level supervisor , who was also the proposing official, stated “that the
appellant could file as many EEO complaints as she wanted, b ut that it would
only hurt her.” PFR File, Tab 3 at 13; ID at 17. In the decision letter, t he
deciding official intimated that the proposing official’s intent was to
communicate to the appellant that, regardless of how many complaints she filed,
she still was required to follow her supervisors ’ directions and conscientiously
5
perform her duties, or else further adverse actions would be taken against her.
IAF, Tab 5 at 14 -15. The proposing official averred in an affidavit that she did
not take any action against the appellant for any discriminatory or retaliatory
reason. IAF, Tab 30 at 167. The administrative judge concluded that, in the
absence of virtually any other evidence indicating that the appellant was
retaliated against, the proposing official’s somewhat ambiguous statement was
insufficient to prove that retaliation was a factor in the agency’s decision to
suspend her. ID at 17-18.
¶9 The administrative judge’s decision was issued before the Board issued its
decision in Gardner v. Department of Vet erans Affairs , 123 M.S.P.R. 647 (2016) ,
which clarified that, in analyzing claims of discrimination or retaliation under
42 U.S.C. § 2000e -16, administrative judges need not separate “direct” from
“indirect” evidence and apply different legal standards to each, nor must they
require appellants to demonstrate a “convincing mosaic” to prove their claims.
Gardner , 123 M.S.P.R. 647 , ¶ 30, clarified by Pridgen v. Office of Management
& Budget , 2022 MSPB 31 , ¶¶ 23-24. Instead, administrative judges should
consider the evidence as a whole to determine whether an appellant has shown by
preponderant evidence2 that the prohibited consideration was a motivating factor
in the contested personnel action. Id., ¶¶ 30 -31. Here , although the
administrative judge discussed the distinction between direct and indirect
evidence, she did not apply different legal standards to each or require the
appellant to demonstrate a convincing mosaic to prove her claim. ID at 17 -18.
¶10 The deci sion letter provided the appellant with notice of the agency’s
position as to the proposing official’s statement. IAF, Tab 5 at 14 -15. Had the
appellant wanted to, she could have questioned the proposing official under oath
2 The Board’s regulations define preponderant evidence as 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 l ikely to be true than untrue. 5 C.F.R.
§ 1201.4 (q).
6
in a deposition or at a hearin g before the administrative judge. 5 C.F.R.
§ 1201.33 (a). Instead, the appellant merely expressed her own belief about the
proposing official’s intent. IAF, Tab 31 at 9. Considering t he record as a whole,
we agree that the appellant failed to prove by preponderant evidence that her
protected activities motivated the agency’s decision to suspend her.3 See
Gardner , 123 M.S.P.R. 647 , ¶¶ 31 -32.
The appellant failed to provide any basis for disturbing the administrative judge’s
conclusion that the penalty imposed was reasonable.
¶11 The appellant argues that her 15 -day s uspensi on was unreasonable because
the proposing official suffered no penalty for threatening to cause her harm for
filing EEO complaints. PFR File, Tab 3 at 14-15. Because the appellant failed to
raise this argument below, we will not consider it on rev iew. See Holton ,
123 M.S.P.R. 688 , ¶ 18.
¶12 The appellant also objects to the administrative judge’s citation to a letter
of repriman d she had received, on the basis that, as of the filing of her petition for
review, it was going to be expunged within a month. PFR File, Tab 3 at 15 -16.
Agencies may rely on past discipline in effecting an action for later misconduct
so long as the agen cy’s ability to cite to the past action has not expired before the
appellant engaged in the later misconduct. Spearman v. U.S. Postal Service ,
44 M.S.P.R. 135 , 140 (1990). Accordingly, the appellant’s allegation provides no
basis for disturbing the initial decision, given that, by her own admission, her
prior discipline had not yet expired. The appellant has not demonstrated any
other bas is for disturbing the administrative judge’s finding that the imposed
penalty was reasonable, and we therefore decline to do so.
3 Because the appellant here failed to prove her initial burden that a prohibited factor
played any part in the agency’s decision, we do not reach the question of whether
retaliation was a but -for cause of that decision. Pridgen , 2022 MSPB 31 , ¶¶ 20 -25, 30.
7
The appellant failed to establish that the administrative judge improperly
pressured her into withdrawing her request for a hea ring.
¶13 The appellant alleges that she “felt pressured” by the administrative judge
to withdraw her request for a hearing. PFR File, Tab 3 at 4. She later clarified
her allegation by stating that the administrative judge told the parties during a
prehearin g conference that she did not understand why the appellant was
requesting a hearing. PFR File, Tab 6 at 7. The appellant alleges that the
administrative judge’s comment made it seem like the hearing was pointless
because the outcome was predetermined. Id. First, we note that, because the
appellant failed to raise any such objection below, we need not consider her
allegation on review. See Rivoire v. U.S. Postal Service , 103 M.S.P.R. 643 , ¶ 11
(2006), aff’d , 244 F. App’x 351 (Fed. Cir. 2007). Second, we note that unsworn
allegations generally are insufficient to rebut the presumption of the
administrative judge’s honesty and integrity. See Gensburg v. Department of
Veterans Affairs , 85 M.S.P.R. 198 , ¶ 7 (2000). Finally, we find that the
appellant’s allegations, even if true, do not demonstrate any improper actions by
the administrative judge.
¶14 For the reasons set forth above, we deny the appellant’s petition for review
and af firm the initial dec ision sustaining her suspension.
NOTICE OF APPEAL RIG HTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the a ppropriate
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
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
provide legal advice on wh ich 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 immed iately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.caf c.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
9
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, o r other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
10
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you s ubmit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via co mmercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistle blower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activ ities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of ap peals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower repr isal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
11
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submi t a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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/CourtWebsit es.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | GRAYE_JEWEL_A_DC_0752_15_0591_I_1_FINAL_ORDER_1971439.pdf | 2022-10-21 | null | DC-0752 | NP |
4,005 | https://www.mspb.gov/decisions/nonprecedential/SCOTT_JOHN_A_AT_0752_13_3395_X_1_FINAL_ORDER_1970865.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHN A. SCOTT, JR.,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-0752 -13-3395 -X-1
DATE: October 20, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Elijah J. Williams , Lithonia, Georgia, for the appellant.
Amee Patel , Decatur, Georgia, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 On July 19, 2017, the administrative judge issued a compliance initial
decision finding the agency in noncompliance with the Board’s final decision,
which ordered the agency to cancel the appellant’s constructive suspension 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 nonpreceden tial 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
retroactively restore him to duty. Scott v. Department of Veterans Affairs , MSPB
Docket No. AT -0752 -13-3395 -C-1, Compliance File, Tab 8, Compliance Initial
Decision (CID). Accordingly, the administrative judge granted the appellant’s
petition for enforcement and ordered the agency to pay the appellant back pay for
the period of June 17 through September 8, 2013, to restore his leave for any time
during the period he was not in paid leave status, and to provide him with an
explanation of its back pay calculations and of any leave res tored. CID at 5. For
the reasons discussed below, we now find the agency in compliance and DISMISS
the petition for enforcement.
DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE
¶2 When the Board finds a personnel action unwarranted or not sustainable, it
orders that the appellant be placed, as nearly as possible, in the situation he would
have been in had the wrongful personnel action not occurred. House v.
Department of the Army , 98 M.S.P.R. 530 , ¶ 9 (2005). The agency bears the
burden to prove its compliance with a Board order. An agency’s assertions of
compliance must include a clear explanation of its compliance actions suppor ted
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).
¶3 In its initial compliance submission, the agency stated that it had provided
the appellant the back pay and restoration of leave to which he was entitled, with
supporting documentation. Scott v. Department of Veterans Affairs, MSPB
Docket No. AT -0752 -13-3395 -X-1, Compliance Referral File (CRF), Tab 1. The
agency also submitted an e -mail from the appellant acknowledging that he had
received the back pay and restored leave. Id. at 5. However, the supporting
documentation for the agency’s actions was not provided to the Board at that
3
time. Subsequently, in response to Board orders, the agency has submitted
evidence that on its face shows the calculation of the amount of the appellant’s
back pay, i ncluding the within -grade step increase that was due the appellant
during the back pay period. CRF, Tab 5 at 6-7, Tab 8. An agency submission
also shows the agency’s appropriate calculation of the interest due on his back
pay. CRF, Tab 10 at 6.
¶4 The Bo ard notified the appellant in its March 27, 2018 Order that he could
submit a reply to the agency’s evidence within 20 days after the date of service of
the agency’s submission. CRF, Tab 9 at 2. The Board’s order also informed the
appellant that, in the a bsence of a timely reply, the Board may assume that he is
satisfied with the agency’s actions and dismiss the petition for enforcement. Id.
The agency’ s submission was served on the appellant on April 16, 2018. CRF,
Tab 10. The appellant has not respon ded to the agency’s submission.
¶5 In light of the foregoing, we find the agency in compliance and dismiss the
petition for enforcement. This is the final decision of the Merit Systems
Protection Board in this compliance proceeding. Title 5 of the Code of Federal
Regulations, section 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of ho w courts will rule regarding which cases fall within their
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Fail ure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have qu estions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayme nt of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
6
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review t o the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursua nt to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a pro hibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Cir cuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)( B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washing ton, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probon o for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a g iven case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Loc ator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SCOTT_JOHN_A_AT_0752_13_3395_X_1_FINAL_ORDER_1970865.pdf | 2022-10-20 | null | AT-0752 | NP |
4,006 | https://www.mspb.gov/decisions/nonprecedential/KING_TONY_AT_0752_18_0079_I_1_FINAL_ORDER_1971033.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TONY KING,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
AT-0752 -18-0079 -I-1
DATE: October 20, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew Kim , Esquire, Atlanta, Georgia, for the appellant.
Jose Calvo , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The agency has fi led a petition for review of the initial decision, which
reversed the appellant ’s removal . For the reasons discussed below, we GRANT
the agency’s petition for review and REVERSE the administrative judge’s finding
on the appellant’s affirmative defense , instead finding that the appellant failed to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c).
2
prove that retaliation for filing equal employment opportunity (EEO) complaints
was a motivating factor in the agency ’s removal action . We AFFIRM the
administrative judge’s reversal of the appellant’s removal
BACKGROUND
¶2 The agency removed the appellant from h is GS-12 Enforcement
Investigative and Analysis Officer (EIAO) position with the Food Safety and
Inspection Service based on the char ges of (1) unprofessional conduct and
(2) failure to follow instructions . Initial Appeal File (IAF), Tab 5 at 15 -19,
153-59. Regarding the charge of unprofessional conduct, the agency alleged that
during a December 6, 2016 Routine Listeria Monocytogenes ·(RLM) sampling at
Wayn e Farms in Decatur, Alabama, the appellant, who wa s aided by a Consumer
Safety Inspector (CSI), got within inches of the CSI ’s face and stated , “Do you
know who I am? ” Id. at 153. The agency alleged that the appellant ’s behavior
and tone were intimidating and his conduct unprofessional . Id. Regarding the
charge of failure to follow instructions , the agency alleged that on three occasions
the appellant failed to timely respond to email instructions. Id. at 154.
¶3 The appellant filed a Board appeal of the agency’s action , alleging
retaliatio n for filing EEO complaints and requesting a hearing. IAF, Ta bs 1, 19.
¶4 After the hearing, t he administrative judge issued an initial decision
reversing the removal. IAF, Tab 25, Initial Decision (ID) at 1, 20 . She found
that those present at the Wayne F arms RLM sampling included, in addition to the
appellant and the CSI, another EIAO and an employee of Wayne Farms . ID
at 7-8. She credited the testimony of the Wayne Farms employee that the
appellant did not raise his voice, speak in a threatening manner or get close to the
CSI’s face, and was not combative. ID at 11. Thus, she found that the agency
did not prove charge (1). Id. She also found that the agency failed to show that
the appellant did not timely respond to three emails and thus failed to prove
3
charge (2). ID at 11 -15. Additionally, she found that the appellant established
that the removal action constituted retaliation for his EEO activ ity. ID at 16 -20.
¶5 In its petition for review, the agency alleges that the administrative judge
erred in finding that it di d not prove charge (1) .2 Petition for Review (PFR) File,
Tab 1 at 4-5, 8-14.3 In addition , the agency contends that the administrat ive
judge erred in making findings on the appellant ’s affirmative defense of reprisal
for fili ng EEO complaints because the affirmative defense became moot when the
appellant failed to seek consequential damages . Id. at 4 -5, 14-15. Also , the
agency asser ts that the administrative judge erred in finding retaliation . Id.
2 The agency does not argue that the administrative judge erred in finding that the
agency failed to prove charge (2). We therefore find no basis to disturb the
administrative judge ’s determinations regarding charge (2). See 5 C.F.R. § 1201.115
(noting that the Board normally will consider only issues raised in a timely filed
petition or cross petition for review).
3 In the initial decision , the administrative judge ordered interim relief. ID at 21 -22.
Accompanying the agency’s petition for review is evidence that it has complied with
the interim relief order. PFR File, Tab 1 at 21 -36. In a January 12, 2020 filing titled
“Petition for Enforcement,” the appellant argues that the agency is not in compliance
with the interim relief order because it subsequently effected a second removal action
against him for unrelated misconduct. PFR File, Tab 8 at 4 -8. The agency has file d a
response opposing the appellant’s request. PFR File, Tab 9. It is well settled that an
interim relief order does not insulate an appellant from a subsequent adverse action so
long as that action is not inconsistent with the initial decision. Rothwel l v. U.S. Postal
Service , 68 M.S.P.R. 466 , 468 (1995). Here, nothing in the initial decision precluded
the agency from initiating a seco nd action. Moreover, when an agency effects a second
removal action during a period of interim relief ordered in an initial decision in a prior
removal action, and the appellant files an appeal of the second action, the Board
considers the second removal action on its merits. See generally Wilson v. Department
of Justice , 66 M.S.P.R. 287 , 291, 296 -97 (1995). The appellant filed a separate a ppeal
of the agency’s second removal action, an initial decision on the merits was issued in
that case, and the Board denied the appellant’s petition for review of that initial
decision . See King v. Department of Agriculture , MSPB Docket No. AT‑0752 -19-
0350-I-1, Initial Decision (July 1, 2019) ; King v. Department of Agriculture , MSPB
Docket No. AT‑0752 -19-0350 -I-1, Final Order (Oct. 18, 2022) . Thus, we find it
unnecessary to issue an order requiring the agency to submit evidence of compliance
with the int erim relief order, and we deny the appellant’s request. See Elder v.
Department of the Air Force , 124 M.S.P.R. 12 , ¶ 20 (2016).
4
at 15-19.4 The appellant has responded in opposition to the petition. PFR File,
Tab 6. The agency has replied to the appellant ’s response. PFR File, Tab 7.
ANALYSIS
The administrative judge properly found that the agency failed to prove
charge (1).
¶6 The agency has the burden to prove charged misconduct by preponderant
evidence, 5 C.F.R. § 1201.56 (b)(1)(ii), and it conte nds that it met that burden.
The agency argues that, because the words that the administrative judge found
were spoken by the appellant to the CSI during the Wayne Farms RLM sampling,
“You don ’t know who I am, ” are so similar to the phrase , “Do you know w ho I
am?” recited in the charge, the agency proved the essence of the charge . PFR
File, Tab 1 at 7-11. The agency also contends that the appellant ’s testimony tha t
the CSI provoked hi s statement is contradicted by the Wayne Farms employee,
whom the administrative judge found credible. Id. at 11 -14. Thus, the agency
contends that, by showing that the words spoken by the appellant were in essence
no different from those charged and tha t those words were not provoked by
something the CSI said or did, it proved that the appellant ’s statement was
“unprofessional ” and proved charge (1).
¶7 The administrative judge considered whether , during the RLM sampling , the
appellant stated , “Do you kn ow who I am? ” or “You don ’t know who I am. ” ID
at 9-10. She found it illogical that the appellant would have said , “Do you know
4 The agency argues for the Board to draw an adverse inference because the appellant
did not call one of the witnesses whom he alleged witnessed the exchange underpinning
charge (1). PFR File, Tab 1 at 14. The Board has held that an adverse inf erence of
misconduct can be inferred from the failure of the appellant to testify or to call a
witness only in limited circumstances. Shustyk v. U.S. Postal Service , 32 M.S.P.R. 611 ,
613-15, aff’d , 831 F.2d 305 (Fed. Cir. 1987) (Table). The Board has not permitted a
negative inference to be made against a party who, as here, s imply fails to call his own
nonhostile witnesses at the hearing. See Logan v. Department of the Navy , 29 M.S.P.R.
573, 577 –78 (finding that the administrative judge erred when he imposed sanctions by
drawing negative inferences against the agency for its failure to produce two witnesses
at the hearing), aff’d , 809 F.2d 789 (Fed. Cir. 1986) (Table).
5
who I am? ” with its implication that he sho uld not be crossed due to his position
because, while it is true that the appellant held a higher grade than the CSI, the
appellant was not the CSI ’s supervisor or anywhere in his chain of command , and
the record does not reflect that he had a ny power over the CSI . ID at 9 -10. She
found that, given that the Wayne Farms employee ’s and th e other EIAO ’s
testimo ny were consistent with one another that the appellant stated, “You don ’t
know who I am, ” it was more likely than not that the appellant said to the CSI ,
“You don ’t know who I am, ” and that he said it in the context of the CSI making
unflattering comments about the appellant ’s character and conduct. ID at 10.
She found that t he evidence leads to a conclusion that , more likely than not, the
appellant was saying , in effect, “you don ’t know me .” Id.
¶8 The administrative judge ’s careful analysis shows a clear difference
between the meaning of the statement “Do you know who I am? ” and the
statement “You don ’t know who I am ” under the circumstances of the exchange
between the appellant and the CSI during the Wayne Farms RLM sampling .
While the former phrase could be viewed as threatening, the latter phrase is a
proper response to personal accusations by another person. Thus, the agency ’s
assertion is unavailing that the phrase that the administrative judge found that the
appellant utt ered and the phrase recited in charge (1) are so similar that the
agency proved that he uttered words that might be viewed as unprofessional .
¶9 The agency ’s contention that the Wayne Farms employee testified that the
appellant ’s words were not provoked by something the CSI said or did is equally
unavailing. The administrative judge credit ed the Wayne Farms employee ’s
testimony that the CSI said som ething to the appellant that the Wayne Farms
employee found surprising, and in re sponse, the appellant did not raise his voice,
speak in a threatening man ner or get close to the CSI ’s face, and was not
combative. ID at 11. The Board must give deference to an administrative judge ’s
credibility determinations when they are based, expli citly or implicitly, on the
observation of the demeanor of witnesses testifying at a hearing; the Board may
6
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 found the Wayne Farms employee credible based,
in part, on that individual’s carriage, behavior, manner of testifying, and
appearance. ID at 8. The agency has not given sufficiently sound reason s to
overturn the administrat ive judge ’s finding that the W ayne Farms employee
credibly testified that the appellant gave a measured response to the CSI ’s
surprising statement . Th us, th e administrative judge properly found that the
agency failed to prove that the appellant ’s behavior and tone w ere intimidating
and his conduct was unprofessional. She therefore properly found that the agency
failed to prove charge (1).
The administrative judge was not precluded from adjudicating the appellant ’s
allegation of retaliation for filing EEO complaints.
¶10 If an appellant prevails in an appeal before the Board based o n a finding of
discrimination, he may recover compensatory damages from the agency pursuant
to the Civil Rights Act of 1991. Hess v. U.S. Postal Service , 124 M.S.P.R. 40,
¶ 19 (2016) . Thus, re versal of an agency action when an appellant has raised the
affirmative defense of discrimination or retaliation for filing a complaint of
discrimination does not afford the appellant all possible relief available to him ,
and the administrative judge must adjudicate the affirmative defense . See Morey
v. Department of the Navy , 38 M.S.P.R. 14, 17 (1988) .
¶11 However, the Board ’s regulations requir e that a claim for compensatory
damages be raised before the close of the prehe aring conference and must be set
forth in writing, specifying the amount sought and the reasons why the appellant
believes that he is entit led to an award of compensatory damages. 5 C.F.R.
§ 1201.204 (a)-(b). T he agency contends that, even though the appellant alleged
retaliation for filing EEO c omplaints, because he did not raise a claim for
compensatory damage s as provided by section 1201.204 , he is precluded from
7
establishing entitlem ent to such damages, and the administrative judge should not
have adjudicated his affirmative defense of retaliation . PFR File, Tab 1 at 14 -15.
¶12 Here, we need not reach the issue of whether a failure to raise a claim for
compensatory damages pursuant to section 1201.204 could allow an
administrative judge , after reversing an agency action, to dismiss the affirmative
defense of discrimination o r retaliation without adjudicating it . Although the
appellant did not clearly raise a claim for compensatory dama ges below , there is
no indication in the record that he received the appropriate information with
respect to how to raise any such damages claim. Board regulations do not require
administrative judges or the Board to provide notice of th e right to request
compensatory damages. Hawkes v. Department of Agriculture , 103 M.S.P.R. 345,
¶ 9 (200 6), aff’d , 253 F. App’x 939 (Fed. Cir. 2007) . However, the Board has
found it appropriate to waive the appellant ’s failure to comply with the
requirement s of 5 C.F.R. § 1201.204 (a)-(b) when the appellant was never
apprised of the requirement s. See Harris v. Department of the Air Force ,
96 M.S.P.R. 193 , ¶ 11 (2004) . Thus, we find no error in the administrative
judge ’s adjudication of the appellant ’s allegation of retaliation for filing EEO
complaints.
The adm inistrative judge erred in finding that the appellant established retaliation
for filing EEO complain ts.
¶13 When an appellant asserts an affirmative defense of discrimination or
retaliation under 42 U.S.C. § 2000e -16, the Board first will inquire whether ,
considering the evidence as a whole, the appellant has shown by preponderant
evidence that the prohibited consideration was a motivating factor in the
contes ted personnel action. Gardner v. Department of Veterans Affairs ,
123 M.S.P.R. 647, ¶ 28 (2016) , clarified by Pridgen v. Office of Management &
Budget , 2022 MSPB 31 , ¶¶ 23-24; Savage v. Department of the Army ,
122 M.S.P.R. 612, ¶ 41 (2015) , overruled in part by Pridgen , 2022 MSPB 31 ,
¶¶ 23-25. Such a showing is sufficient to establ ish that the agency violated
8
42 U.S.C. § 2000e -16, thereby committing a prohibited person nel practice under
5 U.S.C. § 2302 (b)(1) . Savage , 122 M.S.P.R. 612, ¶ 51.
¶14 In find ing that the appellant prove d his affirmative defense, the
administrative judge considered that the appellant had filed eight EEO
complaints , about one per year over the past 8 years , and that the proposing and
deciding official s were aware o f those complaints . ID at 16. She considered that
the Deputy District Manager , who had initiated the disciplinary process but who
was not the proposing or deciding official , was aware of those complaints as well,
had suggested that the appellant be disci plined for contact ing management
officials about a pending EEO complaint while he was on leave for the death of a
family member , and had stated that he was looking to build a case and “throw
darts” against the appellant .5 ID at 16 -17. The administrative judge also relied
upon her finding that the Deputy District Manager “and perhaps others” had a
motive to retaliate , that the process was tainted by procedural irregularities
because the agency did not appear to follow its own procedures that the alleged
misconduct be investigated by the Internal Control Office (ICO) and did not get a
statement from the appellant regarding the events underlying the unprofessional
conduct charge, and that the evidence fell far short of supporting a removal. ID
at 17-20.
¶15 We agree with the administrative judge that the record shows that the
Deputy District Manager ’s motivation to have the appellant disciplined was
significant; however, we disagree with her finding that his motivation was based
on retaliation for EEO activity and that he influence d the decision making
process. The administrative judge found that there was no evid ence that the
Deputy District Manager was implicated in or punished as a result of the
5 The administrative judge mistakenly attributed the District Manager ’s testimony to the
Deputy District Manager . ID at 17. The record shows that it was the District Manager
who testified to building a disciplinary case and looking for darts to throw at the
appellant. PFR File, Tab 3, Hearing Transcript at 130, 151 -52.
9
appellant’s EEO complaints. ID at 17. The administrative judg e also did not
describe in any detail the nature of the EEO complaints or otherwise find that the
acting officials were implicated in or punished as a result of those complaints.
Moreover, t he Deputy District Manager did not initiate the disciplinary proc ess
that resulted in the appellant ’s proposed removal . Rather, he initiated the request
for discipline because of the complaints filed by the C SI and EIAO who were
present at the Wayne Farms RLM sampling. IAF, Tab 5 at 30‑31. Further, there
is no eviden ce that he influenced the charges in the notice of proposed removal as
those charges are significantly different fro m the request for discipline. That
request describes the appellant ’s behavior at the Wayne Farms RLM sampling as
bullying, a word not used in the notice of proposed removal. IAF, Tab 5 at 31,
153. Further, the request alleges that the appellant failed in his technical ability
to properly don sterile gloves for the sampling, a charge not made in the notice.
Id. at 31. Additionally, the request identifies other alleged misconduct by the
appellant , including an attempt to deceptively request compensatory time , failure
to follow District Office Instructions to notify the District Office fol lowing the
completion of an RLM sampling, and disho nest and unprofessional behavior in
requesting leave for the death of a family member and then using this time to
contact the agency about his EEO case. Id. at 30 -31. None of these allegations
resulted in misconduct charges against the appellant.
¶16 Furth er, the administrative judge ’s finding that the process was tainted by
procedural irregularities because the agency failed to follow a prescribed
investigative process and obtain a statement from the appellant before taking the
action is not supported by t he record. Contrary to the administrative j udge ’s
finding that the proposing official testified that investigations are always
delegate d to the ICO , her testimony on cross -examination was that investigations
are “usually” done by the ICO . PFR File, Tab 3 , Hearing Transcript at 223.
Further, requests for discipline are submitted via a form that affords the
requesting official the option of checking either an “Investi gation” or
10
“Disciplinary Action ” box, and in this case the request was checked “Disciplina ry
Action.” IAF, Tab 5 at 30. Despite the administrative judge’s finding that the
agency did not seek a statement from the appellant before deciding to discipline
him, the record includes evidence that, in response to an inquiry about the events
underlyi ng the unprofessional conduct charge, the appellant indicated that the CSI
was lying. Id. at 31. Importantly, there is no evidence that the Deputy District
Manager influenced the deciding official such that he did not afford the appellant
his opportunity to respond to the charges. Although the administrative judge
found that the credible evidence in support of the action was not strong, we find
that any lack of strength in such evidence, when considered along with the other
relevant evidence on this issu e, is not sufficient to establish that retaliation for
EEO activity was a motivating factor in the appellant’s removal. See Gardner ,
123 M.S.P.R. 647, ¶¶ 29-31 (requiring a consideration of the evidence as a whole
in determining whether an appellant has proven her affirmative defenses).
¶17 Accordingly, we find that the appellant has failed to show by preponderant
evidence6 that a prohibited consideration was a motivating factor in the contes ted
personnel action.7 See Gardner , 123 M.S.P.R. 647, ¶ 31; Savage , 122 M.S.P.R.
612, ¶ 41.
ORDER
¶18 We ORDER the agency to cancel the appellant’s removal and to restore the
appellant effective October 1 0, 2017 . See Kerr v. National Endowment for the
6 The Board’s regulations define “[p] reponderance of the evidence” as “[t]he degree of
relevant evidence that a reasonable person, considering the record as a whole, would
accept as sufficient to find that a contested fact is more likely to be true than untrue.”
5 C.F.R. § 1201.4 (q).
7 Because we find that the appellant failed to show that any prohibited consideration
was a mo tivating factor in the agency’s action, we need not resolve the issue of whether
the appellant proved retaliation was a but -for cause of the agency’s decision. See
Pridgen , 2022 MSPB 31 , ¶¶ 20 -22, 29 -33.
11
Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
¶19 We also ORDER the agenc y to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, in terest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶20 We further ORDER the agency to tell the appellant promptly in writing
when it believes it ha s fully carried out the Board’s Order and of the actions it 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).
¶21 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appel lant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board ’s Order, and should include the dates and results of
any c ommunications with the agency. 5 C.F.R. § 1201.182 (a).
¶22 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Def ense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentati on necessary to process payments and adjustments resulting from the
12
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 ‑day period set forth above.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNE Y FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIG HTS8
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cas es fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
8 Since the issuance of the initial decision in this matter, the Board may have 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
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a pe tition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional info rmation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules o f Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
14
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your r epresentative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any r equirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your rep resentative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
15
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 2050 7
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
dispos ition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court o f Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.9 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The Al l 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
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
17
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx .
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are p aid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the ba ck pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the docume ntation is not applicable:
☐ 2) Settlement agreement, administrative dete rmination, arbitrator award, or order.
☐ 3) Signed and completed “Empl oyee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civili an 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.
Docume ntation 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 pa y 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 lum p 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).
18
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, rest orations) 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 mus t 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 -50's (Personnel Actions) or list of salary adjustments/changes and
amoun ts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employe e 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 Increas e, 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 t he above, please contact NFC’s
Payroll/Personnel Operations at 504 -255-4630. | KING_TONY_AT_0752_18_0079_I_1_FINAL_ORDER_1971033.pdf | 2022-10-20 | null | AT-0752 | NP |
4,007 | https://www.mspb.gov/decisions/nonprecedential/LITTLE_JOHN_W_SF_0752_16_0607_I_1_FINAL_ORDER_1970247.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHN W. LITTLE,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
SF-0752 -16-0607 -I-1
DATE: October 19, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
John W. Little , Bremerton, Washington, pro se.
Eric M. Pederson and Alan Mygatt -Tauber , Silverdale, Washington, for the
agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his indefinite 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error aff ected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. T herefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 As further detailed in the initial decisio n, the appellant holds the noncritical
sensitive position of Mechanical Engineer for the agency’s Naval Facilities
Command, Northwest. Initial Appeal File (IAF), Tab 21, Initial Decision (ID)
at 3. In 2014, his security clearance expired, 10 years after issuance. Id. While
reinvestigation of his security clearance commenced, the agency permitted him to
continue accessing controlled areas. Id. However, in May 2016, while the
reinvestigation was still pending, the agency proposed suspending his access t o
classified information and areas, and assignment to sensitive duties , based on the
results of a psychological/psychiatric evaluation and the appellant’s conduct . ID
at 3-4; IAF, Tab 7 at 25 -33, Tab 12 at 6 . After the appellant responded, the
agency iss ued a decision suspending his access. ID at 4. The agency then
proposed the appellant’s indefinite suspension for failure to meet a condition of
his employment, specifically, access to classified information and assignment to a
sensitive position. Id. After the appellant responded both orally and in writing to
the proposal , the agency issued a decision upholding the indefinite suspension,
effective June 23, 2016, pending a final clearance determination from the
Department of Defense Consolidated Adjudic ation Facility. ID at 4 -5, 12 ; IAF,
Tab 7 at 13 -16. The instant appeal followed. IAF, Tab 1.
3
¶3 The administrative judge informed the appellant of the Board’s limited
authority to review matters relating to security clearance determinations. E.g.,
IAF, Tab 9 at 2. She limited the issues for hearing accordingly. IAF, Tab 12
at 2-3; ID at 5. The administrative judge then issued a decision affirming the
appellant’s indefinite suspension. ID at 5 -13. The appellant has filed a petition
for review. Petit ion for Review (PFR) File, Tab 1.2 The agency has filed a
response. PFR File, Tab 3.
¶4 An indefinite suspension lasting more than 14 days is an adverse action
appealable to the Board under 5 U.S.C. § 7513 (d). 5 U.S.C. § 7512 (2); Palafox v.
Department of the Navy , 124 M.S.P.R. 54 , ¶ 8 (2016). It is well settled that an
agency may indefinitely suspend an appellant when his access to classified
information has been suspended and he needs such access to perform his job.
Palafox , 124 M.S.P.R. 54 , ¶ 8. In such a case, the Board lacks the authority to
review the merits of the decision to suspend access. Id. However, the Board
retains the auth ority to review whether: (1) the appellant’s position required
access to classified information; (2) his access to classified information was
suspended; and (3) he was provided with the procedural protections specified in
5 U.S.C. § 7513 . Id. In addition, the Board has the authority under 5 U.S.C.
§ 7701 (c)(2)(A) to review whether the agency provided the procedural protections
required un der its own regulations. Id. Finally, because a tenured Federal
employee has a property interest in continued employment, the Board also may
consider whether the agency provided minimum due process in taking the
indefinite suspension action. Id.
2 With his petition for review, the appellant attached a number of documents. PFR File,
Tab 1 at 10 -28. These documents are duplicates of ones provided below. Compare id .,
with IAF, Tab 3 at 26, T ab 7 at 25, Tab 11 at 13 -14, 20 -22, 35 -39, Tab 16 at 42, Tab 17
at 15 -30. Evidence submitted on review that is already a pa rt of the record below is not
considered new. Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256 (1980);
5 C.F.R. § 1201.115 .
4
¶5 On rev iew, the appellant first argues that the agency ordered him to undergo
a mental health evaluation, and that amounted to a prohibited personnel practice
under 5 U.S.C. § 2302 (b)(2). PFR File, Tab 1 at 4; see IAF, Tab 6 at 7, Tab 11
at 2, 4; see generally Mattison v. Department of Veterans Affairs , 123 M.S.P.R.
492, ¶ 11 ( 2016) (recognizing that section 2302(b)(2) “relates to statements or
recommendations by outsiders, like senators or congressmen; the legislative
objective was to forestall political or partisan interference in personnel actions”
(quoting Depte v. United States , 715 F.2d 1481 , 1484 (Fed. Cir. 1983), overruled
on other grounds by Stone v. Federal Deposit Insurance Corporation , 179 F.3d
1368 , 1376 n.4 (Fed. Cir. 1999)). This allegation falls outside the Board’s
limited authority in the context of this appeal, as described above . Supra ¶ 4; see
Doe v. Department of Justice , 121 M.S.P.R. 596 , ¶ 10 (2014) (finding that the
Board is not permitted to adjudicate affi rmative defenses of discrimination or
reprisal in the context of an agency’s adverse action premised on the suspension
or revocation of a security clearance). Because section 2302(b)(2) does not
provide an independent source of Board jurisdiction , we are without authority to
consider this alleged prohibited personnel practice further . See Wren v.
Department of the Army , 2 M.S.P.R. 1 , 2 (1980) , aff’d , 681 F.2d 867 (D.C. Cir.
1982) .
¶6 The appellant next argues that the agency failed to comply with the
procedural requirements set forth in its Perso nnel Security Program, SECNAV
M-5510.30 , by not providing timely notification of its determinations. PFR File,
Tab 1 at 5 (referencing IAF, Tab 17 at 29). This argument relies on the following
agency policy: “Whenever a determination is made to suspend access to
classified information . . . [t]he individual concerned must be notified of the
determination in writing within 10 days.” IAF, Tab 17 at 29 (emphasis added).
Here, the agency met that requirement. The agency proposed the suspension of
the appe llant’s access on May 9, he responded on May 13, and the agency issued
its written decision suspending his access that same day. IAF, Tab 7 at 23, 25,
5
Tab 12 at 6. The appellant is suggesting that the agency’s other determinations
were similarly subject to this 10 -day time limit, including the agency’s earlier
decision to place him on administrative leave and subsequent decision to
indefinitely suspend him. PFR File, Tab 1 at 5. We disagree. T he 10 -day notice
requirement in SECNAV M -5510.30 is specific to the suspension of access to
classified information .
¶7 The appellant also argues that he was entitled to reassignment during his
security clearance investigation, pursuant to SECNAV M -5510.30. PFR File,
Tab 1 at 5 (referencing IAF, Tab 17 at 28). This a rgument similarly misconstrues
agency policy. The cited policy states, “[w]hen questionable or unfavorable
information becomes available concerning an individual who has been granted
access to classified information or assigned to sensitive duties . . . [ c]ommanding
officers will determine whether . . . to suspend or limit an individual’s access to
classified information, or reassign the individual to non -sensitive duties pending
a final [clearance determination].” IAF, Tab 17 at 28 (emphasis added). The
plain language of this policy demonstrates that reassignment is a discretionary
option, not a requirement. There is simply no basis for us to conclude that
reassignment was required during his period of suspended access. See Palafox ,
124 M.S.P.R. 54 , ¶ 8 n.1, ¶ 11 (referring to SECNAV M -5510.30 and upholding
an indefinite suspension based on the suspension of access to classifie d
information, despite arguments concerning the possibility of reassignment).
¶8 In addition to the aforementioned arguments, the appellant seems to assert
that his indefinite suspension did not meet the efficiency of the service
requirement of 5 U.S.C. § 7513 because he had a history of good performance.
PFR File, Tab 1 at 6. We disagree. It is well settled that, when an adverse action
is based on the failure t o maintain a security clearance —or in this case, the
failure to maintain eligibility to access classified information and assignment to a
sensitive positio n—the adverse action promotes the efficiency of the service
because the absence of a properly authorized security clearance is fatal to the job
6
entitlement. See Grimes v. Department of Justice , 122 M.S.P.R. 36 , ¶ 14 (2014).
The appellant also identifie s what he describes as a number of “discrepancies” in
the administrative judge’s decision. PFR File, Tab 1 at 5 -8. For example, the
appellant suggests that the initial decision erroneously identified his place of
employment in 2004, when he first received his s ecurity clearance. Id. at 5-6. In
another example, the appellant suggests that the administrative judge’s decision
misstates the access limitations signified by different color -coded badges used
within the agency. Id. at 6-8. However, the appellant has not shown that any of
these alleged errors or discrepancies warrants a different result. See Panter v.
Department of the Air Force , 22 M .S.P.R. 281 , 282 (1984) (recognizing that an
adjudicatory error that is not prejudicial to a party’s substantive rights provides
no basis for reversal of an initial decision) .
¶9 Accordingly, we affirm the initial decision for the reasons set forth above .
NOTICE OF APPEAL RIGH TS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the approp riate 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 o ption 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
immediatel y review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
3 Since the issuance of the init ial decision in this matter, the Board may 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 f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
8
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative recei ves this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepa yment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
9
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for revie w to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pur suant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
4 The original statutory provision that pr ovided for judicial review of certain
whistleblower claims by any court of 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 No vember 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.
Wash ington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/pro bono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_ Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | LITTLE_JOHN_W_SF_0752_16_0607_I_1_FINAL_ORDER_1970247.pdf | 2022-10-19 | null | SF-0752 | NP |
4,008 | https://www.mspb.gov/decisions/nonprecedential/MCCOLLUM_JOHN_W_AT_0831_17_0092_I_1_FINAL_ORDER_1970439.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHN W. MCCOLLUM, II I,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency,
and
CAROLYN MCCOLLUM ,1
Intervenor.
DOCKET NUMBER
AT-0831 -17-0092 -I-1
DATE: October 19, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL2
John W. McCollum, III , Brooksville, Florida, pro se.
Jane Bancroft , Washington, D.C., for the agency.
1 The parties filed a Joint Motion and Stipulation advising that the intervenor in this
action, Carolyn McCollum, died on September 13, 2019, and that monthly apportioned
annuity payments were discontinued following notice of her death. Petition for Review
File, Tab 9.
2 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distingui sh them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board's case law. See 5 C.F.R. § 1201.117 (c).
2
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the March 20, 2017 initial
decision in this appeal. Initial Appeal File, Tab 1 4, Initial Decision ; Petition for
Review (PFR) File , Tab 1. For the reasons set forth below, we DISMISS the
petition for review as se ttled.
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the agency on
June 12, 2020, and by the a ppellant on June 15, 2020. PFR File, Tab 10 . The
document provides, among ot her things, for the withdrawal of the petition for
review. Id., ¶ 1.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement , whether they understand its
terms, and whether they intend to h ave the agreement entered into the record for
enforcement by the Board . See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of th e Interior ,
124 M.S.P.R. 123 , ¶¶ 11-21 (2017) ( holding that the Board may enforce
settlement agreements that have been entered int o the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 We find here that the parties have, in fact, entered into a settlement
agreement that is lawful on its face, that the parties freely entered i nto it, that
3
they understand the terms of the agreement, and that this agreement should be
entered into the record for enforcement. See PFR File, Tab 10, ¶ 6.
¶5 Accordingly, we find that dismissing the petition for review “with prejudice
to refiling” (i.e., the parties normally may not refile this appeal) is appropriate
under these circumstances, and we accept the settlement agreement into the
record for enforcement purposes. This is the final decision of the Merit Systems
Protection Board in this appeal. T itle 5 of the Code of Federal Regulations,
section 1201.113 ( 5 C.F.R. § 1201.113 ).
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this a ppeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within the ir
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropri ate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeal s for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receiv es this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepay ment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
6
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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 com petent jurisdiction.
7
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circu it
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petit ioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our w ebsite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorn ey will accept representation in a given case.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MCCOLLUM_JOHN_W_AT_0831_17_0092_I_1_FINAL_ORDER_1970439.pdf | 2022-10-19 | null | AT-0831 | NP |
4,009 | https://www.mspb.gov/decisions/nonprecedential/DAELLENBACH_PAUL_CH_0752_15_0318_I_2_FINAL_ORDER_1970446.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PAUL DAELLENBACH,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-0752 -15-0318 -I-2
DATE: October 19, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jordeana Daellenbach , Stoughton, Wisconsin, for the appellant.
Erin Buck Kaiser , Esquire, Milwaukee, Wisconsin, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Me mber
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error aff ected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. T herefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decis ion. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 Effective February 12, 2015, the a gency removed the appellant from his
Pipefitter Leader position with the agency’s Veterans Affairs Medical Center in
Madison, Wisconsin , based on two charges: (1) theft (11 specifications); and
(2) lack of candor in an investigation (7 specifications). Daellenbach v.
Department of Veterans Affairs , MSPB Docket No. CH-0752 -15-0318 -I-1, Initial
Appeal File (IAF), Tab 7 at 20. The appellant filed a Board appeal challenging
his removal and request ing a hearing. IAF, Tab 1. Based on the appellant’s
unoppose d motion, t he administrative judge dismissed the appeal without
prejudice to refiling during the pendency of his criminal proceeding that was
based on the same conduct underlying the removal action . IAF, Tab 11 at 4,
Tab 12, Initial Decision at 1 -2.
¶3 The appellant pleaded guilty in the U.S. District Court for the Western
District of Wisconsin to “Theft or Embezzlement of U.S. Property Valued at Less
than $1,000, a Class A Misdemeanor” in violation of 18 U.S.C. § 641.
Daellenbach v. Department of Veterans Affairs , MSPB Docket
No. CH-0752 -15-0318 -I-2, Appeal File (I -2 AF), Tab 15 at 4. The court entered a
3
judgment of guilty on August 25, 2015. Id. The appellant subsequently refiled
his removal appeal. I-2 AF , Tab 1. Based on the court’s judgment, the
administrative judge found that the appellant was both collaterally and judicially
estopped from contesting the theft charge in his removal appeal. I -2 AF, Tab 19.
The appellant disputed the lack of candor charge and the reasonablen ess of the
imposed penalty . I-2 AF, Tab 22 at 4-5. He also made claims of a violation of
due process , harmful procedural error, and disparate penalties. I -2 AF, Tab 30
at 3-5, Tab s 44-45, Hearing Transcript (HT) at 341-43, 345-46 (closing argument
of the appellant) .
¶4 After holding a 2-day hearing, the administrative judge issued an initial
decision that affirmed the appellant’s removal. I -2 AF, Tab 47, Initial Decision
(ID) at 1, 20 . Specifically, she sustained both charges, found a nexus between the
sustained misconduct and the efficiency of the service, and determined that the
penalty of removal was within the bounds of reasonableness. ID at 3-12, 18 -20.
She further found that the app ellant failed to prove the affirmative defenses of a
violation of due process or harmful procedural error . ID at 13-18.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response , PFR File, Tab 5, to which the
appellant has replied , PFR File, Tab 8.2
2 After filing the petition for review and reply, the appellant filed a motion for leave to
file an additional pleading. PFR File, Tab 10. The Board’s regulations provide for the
following four typ es of pleadings on review: a petition for review; a cross petition for
review; a response; and a reply to a response. 5 C.F.R. § 1201.114 (a)(1) -(4). The
Board will not accept any othe r pleading unless a party files a motion with and obtains
leave from the Clerk of the Board to make such a filing. 5 C.F.R. § 1201.114 (a)(5).
That motion must describe the nature of an d need for the pleading. Id. Here, we find
that the appellant’s general explanation in his motion, that he needs to submit new
information relating to evidence already in the record or previously requested in this
case, fails to adequately describe the n ature of and need for an additional pleading.
PFR File, Tab 10 at 4. Therefore, we deny the appellant’s motion for leave to file an
additional pleading. See 5 C.F.R. § 1201.114 (a)(5); see also 5 C.F.R. § 1201.114 (k)
(providing that, once the record on review closes, no additional evidence or argument
4
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge properly sustained the theft charge .
¶6 In his petition for review, t he appellant does not dispute , and we find no
reason to disturb, the administrative judg e’s finding that he is both collaterally
and judicially estopped from disputing the theft charge because of his guilty plea
and the district court’s judgment . ID at 3; I -2 AF, Tab 19 ; see, e.g., Raymond v.
Department of the Army , 34 M.S.P.R. 476, 478, 481 (1987) (finding that the
appellant’s guilty plea conviction in a prior criminal proceeding collaterally
estopped him from contesting the agency’s charge of falsification of his travel
voucher in his removal appeal ); see also Doe v. Department of Justice ,
123 M.S.P.R. 90 , ¶ 11 (2015) (identifying the following three factors that are
generally relevant in determining whether judicial estoppel applies: (1) a party’s
later position must be clearly inconsistent with the same party’s prior position;
(2) i n the earlier proceeding, the party was successful in persuading the
adjudicating body of its positio n, such that “judicial acceptanc e of an inconsisten t
posit ion in a later proceeding would create ‘the perception that either the first or
the second court was misled’”; and (3) “the party seeking to assert an inconsistent
position would derive an unfair advantage or impose an unfair detriment on the
opposing party if not estopped” ) (quot ing New Hampshire v. Maine , 532 U.S.
742, 750 -51 (2001) ).
The administrative judge properly sustained the lack of candor charge .
¶7 The administrati ve judge sustained specifications A, C, E, and F of the lack
of candor charge , and merged specification G into F . ID at 5-12; see Ludlum v.
Department of Justice , 278 F.3d 1280 , 1284 (Fed. Cir. 2002) (explaining that lack
of candor “may involve a failure to disclose something that, in the circumstances,
should have been disclosed in order to make the given statement accurate and
will be accepted unless it is new and material and not readi ly available before the
record closed ).
5
complete”). Base d on our review of the record, we agree with the administrative
judge’s finding that the agency proved the lack of candor charge. ID at 12; see
Burroughs v. Department of the Army , 918 F.2d 170 , 172 (Fed. Cir. 1990)
(finding that, when more than one event or factual specification supports a single
charge, proof of one or more, but not all, of the supporting specifications is
sufficient to sustain the charge) .
¶8 On review, t he appellant reasserts his challenge to the accuracy of the
investigative report. PFR File, Tab 1 at 5 -6; ID at 6 -7. First, he claims that the
date of his in itial interview was June 24, 2014, not June 26, 2014 , as described in
the investigative report and in specifications A, C, and E. PFR File, Tab 1 at 5 -6;
IAF, Tab 7 at 23, 183. Next, he references a discrepancy between the date of a
follow -up interview as written in the investigative report and the entry of
investigator T.G . PFR File, Tab 1 at 5 -6; I-2 AF, Tab 22 at 18; IAF, Tab 7
at 188. The administrative judge relied on the testimony of investigator M.C. in
finding that the initial interview occurred on June 26, 2014. ID at 5; HT at 9
(testimony of investigator M.C.). Further, investigator T.G. testified that the date
of the follow -up interview in his entry was an error and that the investigative
report contained the accurate date . HT at 110-11, 113, 119 (testimony of
investigator T.G.) . Moreover, t he administrative judge found that the
discrepanc ies raised by the appellant failed to cast doubt on the accuracy of the
agency’s investigation. ID at 6 -7. We agree and find that the appellant’s
arguments on review provide no reason to d isturb the administrative judge ’s
finding that the agency pro ved the lack of candor charge.
The appellant has failed t o prove that the agency violated his due process rights
by considering ex parte information .
¶9 The administrative judge addressed the appellant’s argument that the
agency violated his due process rights when it failed to provide him with all the
materials it relied on in proposing and deciding his removal. ID a t 13-15. The
appellant specifically alleged that the agency failed to provide him with
6
information from the criminal investigation . ID at 13 . The administrative judge
relied on the deciding official ’s testimony that the agency compiled both a
criminal file and a separate disciplinary file. Id.; HT at 149, 154 (testimony of
the deciding official). The administrative judge characterized the deciding
official’s testimony as stating that her knowledge of the crimin al file was limited
to a three page summary of investigation that was forward ed to the
U.S. Attorney’s office. ID at 13; HT at 189, 226 -27 (testimony of the deciding
official); I-2 AF, Tab 22 at 15-17. The administrative judge reviewed the
summary of inv estigation and determined that it contain ed no new or add itional
information from that of the disciplinary file. ID at 15. In addition , she found
that the appellant failed to produce any evidence to contradict the deciding
official’s testimony that sh e only relied on information in the disciplinary file in
deciding to remove him. Id.; HT at 227 (testimony of the deciding official).
Thus, the administrative judge found that the appellant failed to prove a due
process violation. ID at 15 ; see Mathis v . Department of State , 122 M.S.P.R. 507,
¶ 6 (2015) (stating that a deciding official violates an employee’s due process
rights when he relies upon new and material ex parte information as a basis for
his decisions on the merits of a proposed charge or the penalty to be imposed) .
¶10 In his petition for review, t he appellant argues that the administrative judge
mischaracterized the decidin g official’s testimony as stating that her knowledge
of the criminal file was limited to the summary of investigation. PFR File, Tab 1
at 7-8, Tab 8 at 4 ; ID at 13. He claims that, in addition to reading the summary of
investigation , the deciding officia l read the initial investigative report that was
forwarded to the U.S. Attorney’s office on July 24, 2014,3 and the “criminal
evidence file.” PFR File, Tab 1 at 7 -8, Tab 8 at 4; IAF, Tab 7 at 167 . We find
3 The agency clarified during a telephonic status conference that the investigative report
dated July 24, 2014, was an earlier draft of the report that the agency relied on in
proposing the appellant’s removal. I -2 AF, Tab 36 at 1. The final investigative report
that was included in the disciplinary file was prin ted on September 28, 2014. I AF,
Tab 7 at 159-227, Tab 8 at 5 -13.
7
that t he deciding official’s testimony establishes that she received the initial
investigative report and summary of investigation , and a “final” police report
from which she created the disciplinary file with Human Resources (HR) . HT
at 150-51, 153 -54, 186 -87, 18 9-90, 226 -27 (testimony of the deciding official) .
Although the disciplinary file included parts of the final investigative report , IAF,
Tab 7 at 159-227, Tab 8 at 5-13, the then -Assistant Chief of HR testified that the
disciplinary file only included evidence that was relevant to the charges in the
appellant’s proposed removal and omitted portions of the police report concerning
criminal matters , HT at 311, 318-21 (testimony of the Assistant Chi ef of HR ).
Thus, we a gree with the appellant that, in addition to the summary of
investigation, the deciding official was aware of other information that was not
included in the disciplinary file .4
¶11 However, a deciding official’s knowledge of information only raises due
process concerns when that knowledge is a basis for the deciding official’s
determinations on either the merits of the underlying charges or the penalty to be
imposed. Bennett v. Department of Justice , 119 M.S.P.R. 685, ¶ 10 (2013).
Here, as the administrative judge properly found, the appellant has failed to
produce any evidence to contradict the deciding official’s testimony that she
relied only on information in the disciplinary file in deciding his removal . ID
at 15; HT at 227 (testimony of the deciding official) . Therefore, we find that he
has fail ed to prove that the deciding official violated his due process rights by
considering ex parte information . See Villareal v. Bureau of Prisons , 901 F. 3d
1361 , 1365 -66 (Fed. Cir. 2018) (finding no due process violation, in part, because
the deciding official did not rely on the ex parte information when making his
4 Although we agree with the appellant that the administrative judge mischaracterized
the deciding official’s testimony, for the reasons discussed below, we find that such
error does not provide a reason 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) .
8
decision on the removal). Although we find no due process violation, we still
must determine whether the agency committed harmful procedural error. See
Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368 , 1378 (Fed. Cir.
1999) (recognizing that public employees are “entitled to whatever other
procedural protections are afforded them by statute, regulation, or agency
procedure which is in addition to the protections afforded by the Constitution ”).
The appellant has failed to prove that the agency commit ted harmful procedural
error by considering ex parte information .
¶12 The administrative judge found that, even if the deciding off icial erred in
considering the summary of investigation, such error did not likely cause her to
reach a different conclusion regarding the appellant’s removal because the
summary contained no new or different information than that in the disciplinary
file. ID at 15; see Stephen v. Department of the Air Force , 47 M.S.P.R. 672 , 681
(1991) ( explaining that a procedural error is harmful if it l ikely had a harmful
effect upon the outcome of the case ); see also 5 C.F.R. § 1201.4 (r). The
appellant does not dispute this finding on review . Moreover , as discussed above ,
we find that the appellant has failed to prove that the deciding official erred by
considering information outside of the disciplinary file in deciding his removal .
The appellant has failed to establish that the agency committed harmful
procedural error by denying him an opportunity to respond to a report of contact .
¶13 The appellant reasserts that the agency denied him the opportunity to
respond to a report of contact between the deciding official and a coworker. PFR
File, Tab 1 at 8-9, Tab 8 at 6 -7. The agency notifie d the appellant in a
memorandum that the deciding official had been contacted by a coworker
concerning his proposed removal , and that he had 7 days “from the day after [his]
receipt” of the memorandum to reply. IAF, Tab 7 at 27 -28. The appellant
received the agency’s memorandum on February 4, 2015, and he believed that he
had until February 12, 2015, to reply . Id. at 27; HT at 304 (testimony of the
appellant). However, he was removed on February 12, 2015. IAF, Tab 7 at 20.
9
To the extent the agency’s memorandum is unclear as to when the reply was due ,
we find that any ambiguity was resolved during the appellant’s conversation with
HR officials.
¶14 The appellant testified that HR officials told him during a meeting that the
earlie st he could be rem oved was on February 13, 201 5. HT at 297 -98, 303 -04
(testimony of the appellant). In contrast, t he Assistant Chief of HR testified that
the reply was due on February 11, 201 5, and that HR officials did not tell the
appellant during the meeting that the earl iest he could be removed was on
February 13, 201 5; rather, according to the Assistant Chief of HR, the HR
officials told the appellant that a decision would most likely be made by Friday,
February 13 . HT at 315 -16, 326 (testimony of the Assistant Chief of HR). The
administrative judge found the testimony of the Assistant Chief of HR more
credible than the appellant’s testimony. ID at 17. In making her credibility
determination, she properly considered the relevant Hillen factors.5 ID at 16 -17.
The appellant presents no evidence or argument on review to undermine the
testimony of the Assistant Chief of HR. Thus, we agree with the administrative
judge’s f inding that the due date for the appellant’s response was February 11,
2015.6 ID at 17.
¶15 According to the report of c ontact setting forth the additional material that
the deciding official received from the appellant’s coworker, the coworker
expressed concern that, if the agency removed the appellant, it would “create a
big proble m for the hospital,” as the appellant knew the pipe systems and a major
project was scheduled for the next year. IAF, Tab 7 at 28. The administrative
judge found that, even if the appellant was denied an opportunity to respond to
5 In Hillen v. Department o f the Army , 35 M.S.P.R. 453 , 458 (1987), the Board set forth
factors that an administrative judge must consider when making a credibility
determination.
6 The administrative judge made a typographical error in finding that the appellant’s
response to the report of contact was due by February 11, 2014.
10
the new material, it was “difficult to comprehend how not responding to favorable
information was in any way detrimental to the appellant.” ID at 17. We agree
with the administrative judge’s assessment that the appellant failed to prove that
the agency’s failure to consider the response to the report of contact was
harmful .7 ID at 17-18; see Stephen , 47 M.S.P.R. at 681 (explaining that a
procedural error is harmful if it likely had a harmful effect upon the outcome of
the case) .
The administrative judge properly found that th e agency established nexus and
the reasonableness of the penalty.
¶16 When, as here, the Board has sustained all of the agency’s charges, the
Board will review an agency -imposed penalty only to determine if the agency
considered the relevant Douglas factors and exercised management discretion
within tolerable limits of reasonableness. Holland v. Department of Defense ,
83 M.S.P.R. 317, ¶ 9 (1999 ); see Douglas v. Veterans Administration , 5 M.S.P.R.
280, 305 -06 (1981) (articulating a nonexhaustive list of 12 factors that are
relevant in assessing the penalty to be imposed for an act of misconduct) . The
Board will modify the agency’s chosen penalty only if it finds that the agency
failed to weigh the relevant factors or that the agency’s judgment clearly
excee ded the limits of reasonableness. Douglas , 5 M.S.P.R. at 306.
¶17 Here, the decision letter and the Douglas factors memorandum show that
the deciding official considered the relevant factors, including the nature and
seriousnes s of the appellant’s misconduct. IAF, Tab 7 at 24, 82-86. The deciding
7 For the first time on review, the appellant alleges that the agency violated his due
process rights by denying him an opportunity to reply to the report of contact. PFR
File, Tab 1 at 8 -9. The Board generally will not consider an argument raised for the
first time in a petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence. Banks v.
Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980). Therefore, the Board need
not consider this argument further . However, we note that favorable information about
an employee is not the type of communication likely to result in undue pressure upon
the deciding official to rule against the employee . See Ward v. U.S. Postal Service ,
634 F.3d 1274 , 1280 (Fed. Cir. 2011); Stone , 179 F.3d at 1377 .
11
official also considered the appellant’s years of service , lack of any prior
disciplinary action, and exemplary work performance , but concluded that his
misconduct was of such gravity that the penalty of removal was appropriate and
within the range of reasonableness. Id. at 24, 83 -85.
¶18 In assessing the reasonableness of the penalty, the administrative judge
found that the agency properly considered the relevant factors in deciding that a
removal was appropriate. ID at 20. In making this finding , the administrative
judge relied on the deciding official ’s testimony that she considered the nature of
the appellant’s misconduct to be very serious because it involved criminal activity
and that she would have removed him b ased on the theft charge alone. ID at 19;
HT at 161, 171 (testimony of the deciding official ). The administrative judge
noted that the deciding official testified that two other employees who were
involved in the same incidents of theft were also removed . ID at 19; HT at 163
(testimony of the deciding official ). The administrative judge further found that
the agency proved that the appellant was on notice that taking scrap metal for his
personal benefit was not authorized und er agency policies. ID at 2 0.
¶19 On review, t he appellant challenges the administrative judge ’s finding that
he was on notice that his conduct violated agency policies , and he reasserts his
disparate penalties claim . PFR File, Tab 1 at 9-12, Tab 8 at 7-8. In a written
statement , the appellant acknowledged that, around summer 2007, the agency’s
policy was to place scrap metal in bins for pickup by vendors. IAF, Tab 8 at 48,
50. Thus, we agree with the administrative judge ’s finding that the appellant was
on notice that his misc onduct was unauthorized under agency policies . ID at 20.
Next, we find that the appellant has failed to establish disparate penalties . The
record and hearing testimony establish that the two other employees who were
involved in the same underlying misco nduct as the appellant were also removed,
12
but none of the other proffered comparators were charged with theft.8 I-2 AF,
Tab 23 at 25; HT at 163 (testimony of the deciding official), 317 (testimony of
the Assis tant Chief of HR ). For these reasons, we agree with the administrative
judge ’s finding that the agency proved that it considered the relevant factors and
that removal was within tolerable limits of reasonableness. ID at 20.
¶20 Finally, the appellant does not dispute , and we fi nd no reason to disturb, the
administrative judge ’s finding that the agency established nexus between the
appellant’s misconduct and the efficiency of the service. ID at 18; see Parker v.
U.S. Postal Service , 819 F.2d 1113 , 1116 (Fed. Cir. 1987) (finding that there was
a sufficient nexus between an employee’s conduct and the efficiency of the
service when the conduct occurred , in part , at work); see also Ludlum v.
Department of Justice , 87 M.S.P.R. 56 , ¶ 28 (2000) (finding that the employee’s
lack of candor directly impacted the efficiency of the service ), aff’d , 278 F.3d
1280 (Fed. Cir. 2002).
The appellant’s remaining arguments and submissions on review do not provid e a
reason to disturb the initial decision .
¶21 On review, t he appellant has submitted emails sent in March 2016 regarding
his request for audio recordings of interviews conducted during the investigation ,
portions of a 2011 collective bargaining agreement , and evidence from the record
below . PFR File, Tab 1 at 14-36; I-2 AF, Tab 23 at 14-29. We need not consider
8 The appellant’s submission on comparators repres ents that, of the two other
employees who were charged with theft, one entered into a last chance a greement and
one did not appeal his removal. I -2 AF, Tab 31 at 5; see Dick v. U.S. Postal Service ,
52 M.S.P.R. 322 , 325 ( stating that when “another employee receives a lesser penalty,
despite apparent similarities in circumstances, as the r esult of a settlement agreement,
the agency will not be required to explain the different treatment”), aff’d , 975 F.2d 869
(Fed. Cir. 1992) (Table) . Our decision in Singh v. U.S. Postal Service , 2022 MSPB 15,
¶ 14, issued after the initial decision in this appeal, clarifies that the relevant inquiry for
assess ing a claim of disparate penalties when weighing the reasonableness of a penalt y
is whether the agency knowingly and unjustifiably treated employees who engaged in
the same or similar offenses differently. There is no evidence in the record to indicate
that the agency did so in this case. Thus, any subsequent change in the case law does
not provide a r eason to disturb the conclusions of the initial decision.
13
these submissions because they do not constitute new evidence. See Meier v.
Department of the Interior , 3 M.S.P.R. 247 , 256 (1980) (stating that evidence that
is already a part of the record is not new); Avansino v. U.S. Postal Service ,
3 M.S.P.R. 211, 214 (1980) (stating that th e Board generally will not consider
evidence submitted for the first time on review absent a showing that it was
unavailable before the record was closed despite the party’s due diligence ); see
also Ruffin v. Department of the Treasury , 89 M.S.P.R. 396 , ¶ 6 (2001)
(explaining that, when a hearing is held in a Board appeal, the record in the case
ordinarily closes at the conclusion of the hearing) .
¶22 For the following reasons, we find that the appellant’s submission on
review of his June and July 2016 requests for further informat ion concerning the
agency’s investigation does not warrant a different outcome from that of the
initial decision. PFR File, Tab 1 at 37-41; see Russo v. Veterans Administration ,
3 M.S.P.R. 345 , 349 (1980) (stating that the Board generally will not grant a
petition for review based on new evidence absent a showing that it is of sufficient
weight to warrant an outcome different from that of the initial decision) .
¶23 The appellant claims on review that the agency’s failure to provide him
with evidence concerning its investigation that he requested through the discovery
process and the Freedom of Information Act (FOIA) hindered his ability to meet
his burden in this appeal. PFR File, Tab 1 at 4-8, 12 , Tab 8 at 4, 7-8.
Specifically, he alleges that the agency failed to provide him with audio
recordings of the investigatory interviews, additional information on comparators,
and the initial investigative report dated July 24, 2014 . Id.
¶24 First, the appellant’s failure to file a motion to compel discovery of audio
recordings of the investigatory interviews below precludes him from raising this
discovery issue for the first time on review. See Szejner v. Office of Personnel
Management , 99 M.S.P.R. 275 , ¶ 5 (2005), aff’d , 167 F. App’x 217 (Fed. Cir.
2006). For the same reason , he is precluded from raising a discovery issue
regarding further information on comparators. Next, although the appellant
14
claims that he never received the investigative report dated July 24, 2014 , after he
requested its production , PFR File, Tab 1 at 7, T ab 8 at 4; I-2 AF, Tab 34 at 4, he
has failed to show that the administrative judge abused her discretion in denying
his motion to compel , I-2 AF, Tab 36 at 1; see Fox v. Department of the Army ,
120 M.S.P.R. 529 , ¶ 42 (2014) (explaining that the Board will not reverse an
administrative judge’s rulings on discovery matters, inclu ding a motion to
compel, absent an abuse of discretion) . Finally , the Board lacks jurisdiction to
adjudicate the agency’s alleged failure to comply with his FOIA request s. See
Cortright v. Department of Transportation , 37 M.S.P.R. 565, 570 (1988); see also
5 U.S.C. § 552(a)(4)(B) ( granting U.S. district courts jurisdiction to decide
disputes over an agency’s compliance with FOIA).
¶25 Accordingly, we find that the administrative judge properly affirmed the
appellant’s removal.9
NOTICE OF APPEAL RIG HTS10
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described b elow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
9 To the extent the appellant is asserting the agency’s violation of the collective
bargaining agreement, we decline to consider such argument further because he has
raised it for the first time on review and has failed to show that it is based on new and
material evidence . PFR File, Tab 1 at 7 -8; see Banks , 4 M.S.P.R. at 271.
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.
15
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies t o your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judic ial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Cou rt of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any a ttorney nor warrants that
any attorney will accept representation in a given case.
16
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropri ate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protecti on Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Oppor tunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must fil e
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
17
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commiss ion
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures unde r 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial p etition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may fil e a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.11 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this de cision.
5 U.S.C. § 7703 (b)(1)(B).
11 The original statutory provision that provided for judicial review of certain
whistleblower claims by any cou rt of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblo wer reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
18
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of parti cular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court o f Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | DAELLENBACH_PAUL_CH_0752_15_0318_I_2_FINAL_ORDER_1970446.pdf | 2022-10-19 | null | CH-0752 | NP |
4,010 | https://www.mspb.gov/decisions/nonprecedential/MCMILLAN_PETER_ANDREW_CB_1205_15_0005_U_1_FINAL_ORDER_1970475.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PETER ANDREW MCMILLA N,
Petitioner,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency ,
and
DEPARTMENT OF JUSTICE,
Agency.
DOCKET NUMBER
CB-1205 -15-0005 -U-1
DATE: October 19, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Peter Andrew McMillan , Bayamon, Puerto Rico, pro se.
R. Alan Miller , Washington, D.C., for the Office of Personnel
Management .
Marcia N. Tiersk y, Springfield, Virginia, for the Department of Justice.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required t o follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
FINAL ORDER
¶1 The petitioner asks the Board to review the implementation of a regulation
of the Office of Personnel Management (OPM) by the Department of Justice,
Drug Enforcement Administration (DEA or agency), which the petitioner alleges
required the commission of a prohibited personnel practice and to which he
alleges he has been subjected. For the reasons discussed below, we DISMISS the
petitioner’s request for lack of jurisdiction.
ANALYSIS
¶2 The Board has original jurisdiction to review rules and regulations
prom ulgated by OPM. 5 U.S.C. § 1204 (f). The Board is authorized to declare an
OPM rule or regulation invalid on its face if the Board determines that the
provision would, if implemented by an agency, require any employee to commit a
prohibited personnel practice as defined by 5 U.S.C. § 2302 (b). 5 U.S.C.
§ 1204 (f)(2)(A). Similarly, t he Board has authority to declare an OPM regulation
invalidly implemented by an agency if the Board determines that the provision, as
implemented, has required any employee to commit a prohibited personnel
practice. 5 U.S.C. § 1204 (f)(2)(B).
¶3 The Board’s regulations direct the individual requesting review to provide
the following information: a citation identifying the challenged regulation; a
statement (along with any relevant documents) describing in detail the reasons
why the regulation wou ld require, or its implementation has required, an
employee to commit a prohibited personnel practice; specific identification of the
prohibited personnel practice at issue; and a description of the action the
requester desires the Board to take. 5 C.F.R. § 1203.11 (b); see Roesel v. Office of
Personnel Management , 119 M.S.P.R. 15 , ¶ 7 (2012); Di Jorio v. Office of
Personnel Management , 54 M.S.P.R. 498 , 500 (1992). This information is
required for the individual to be able to state a case within the Board’s
jurisdiction. 5 C.F.R. § 1203.11 (b)(1).
3
¶4 Here, the petitioner challenges the DEA’s implementation of 5 C.F.R.
§ 575.209 (b)(1), a regulation that repeats the statutory limit set by 5 U.S.C.
§ 5753 (d)(1) on the amount of relocation incentive pay ments that may be paid an
employee.2 With exceptions not applicable here, such a bonus may not exceed
25% of the annual rate of basic pay of the employee multiplied by the number of
years of the service period involved. The statute and regulation authori ze
payment by either a single lump sum or by annual installments throughout the
service period. 5 U.S.C. § 5753 (d)(2); 5 C.F.R. § 575.209 (a). The petitioner
contends that the agency erroneously paid him only 25% of one year’s basic pay
for a 3 -year period of service and thereby committed a prohibited personnel
practice under 5 U.S.C. § 2302 (b)(12) by violating a statute or regulation that
implements or directly concerns a merit system principle.3 Regulation Review
File (RRF), Tabs 1, 11. As explained below, the petitioner has not stated a claim
within the Board’s regulat ion review jurisdiction, and therefore we dismiss his
request for review.
2 5 C.F.R. § 575.209 (b)(1) states:
Except as provided in paragraph (c) of this section, the tot al amount of relocation
incentive payments paid to an employee in a service period may not exceed
25 percent of the annual rate of basic pay of the employee at the beginning of the
service period multiplied by the number of years (including fractions of a year) in
the service period (not to exceed 4 years).
5 U.S.C. § 5753 (d)(1) states:
Except as provided in subsection (e), a bonus under this section shall not exceed
25 percent of the annual rate of basic pay of the employee at the beginning of the
service period multiplied by the number of years (including a fractional part of a
year, as determined under regulations of [OPM]) in the required service period of
the employee involved.
3 The petitioner also asserted that the DEA’s implementation of the regulation retaliated
against him by violating 5 U.S.C. § 2302 (b)(8) and (9). However, he alleged no
protected disclosures or protected activity on his part prior to receipt of the disputed
relocation payment that could have been a basis for the alleged reprisal.
4
¶5 The petitioner received a relocation incentive payment for a 3 -year term of
service in Puerto Rico from January 1, 2012, until January 10, 2015. The
Relocation Incentive Service Ag reement signed by the petitioner on February 7,
2012, indicated that he received a lump sum incentive payment of $24,546.75,
which was 25% of his annual basic pay. RRF, Tab 7 at 14 -16. The petitioner
contends that the DEA’s payment was an erroneous imple mentation of the
regulation because the agency was required to pay him this amount for each year
of his 3 years of service in Puerto Rico. RRF, Tab 1 at 5.
¶6 In support of this contention, the petitioner cites the language of the statute
and OPM’s regulat ion as requiring the additional payments. He also states that
8 of the more than 128 individuals who were relocated by the DEA to Puerto Rico
or the Virgin Islands received three annual payments of 25% of basic pay. RRF,
Tab 11 at 5 -6. According to the petitioner, the agency’s implementation of the
regulation committed a prohibited personnel practice under 5 U.S.C.
§ 2302 (b)(12) because 5 C.F.R. § 575.209 (b)(1) is a regulation that implements or
directly concerns the merit system principle in 5 U.S.C. § 2301 (b)(3 ) (“Equal pay
should be provided for work of equal value . . . and appropriate incentives and
recognition should be provided . . . [.]”). RRF, Tab 11 at 6 -7.
¶7 Regarding the petitioner’s reliance on the DEA’s payment of the maximum
allowed relocation ince ntive in three annual installments to a few employees
serving in the Caribbean Division, the agency concedes that this larger amount
was mistakenly paid early on to a few employees because of a short -lived
misunderstanding of a memorandum of the Administra tor. However, the agency
states that after that time the corrected formula, which was used for the
petitioner’s incentive payment, has consistently been used in such payments to
other Caribbean Division employees. RRF, Tab 7 at 10. The petitioner has
acknowledged that the agency has paid the vast majority of relocated individuals
the same relocation payment that he received, but he insists that the agency has
5
violated 5 U.S.C. § 2302 (b)(12) by do ing so and is required to pay them the
higher amount he seeks. RRF, Tab 11 at 5.
¶8 The petitioner has not articulated a prohibited personnel practice within the
meaning of 5 U.S.C. § 2302 (b)(12). B ecause the Civil Service Reform Act did
not intend the merit system principles to be “self -executing,” the statute requires
petitioner’s claim under this provision to identify a law, rule, or regulation
implementing or directly concerning a merit system pr inciple that the agency’s
implementation of 5 C.F.R. § 575.209 (b) violated. Wells v. Harris , 1 M.S.P.R.
208, 215 (1979), modified on other grounds by Gende v. Department of Justice ,
23 M.S.P.R. 604 , 608 -10 (1984). Without meeting this requirement, a claim that
OPM’s regulation violates a merit system principle is not sufficient. Blount v.
Office of Personnel Management , 87 M.S.P.R. 87 , ¶ 3 (2000). Thus, the
petitioner’s sole reliance on the alleged improper implementation of 5 C.F.R.
§ 575.209 (b)(1) without identifying the violatio n of such a law, rule, or regulation
does not allege a violation of 5 U.S.C. § 2302 (b)(12) within the Board’s
jurisdiction under 5 U.S.C. § 1204(f).4 The Board has no jurisdiction under the
statute to address the petitioner’s claim that the DEA has been inconsistent in
making its relocation incentive payments.5
¶9 Thus, we find that the petitioner has failed to state a claim that the OPM
regul ation at 5 C.F.R. § 575.209 (b)(1) has required commission of a prohibited
personnel practice, as applied. Accordingly, the petitioner’s request for
regulation review is dismissed for lack of jurisdiction. This is the final decision
4 The petitioner is also mistaken in asserting that this regulation implements or directly
concerns the merit system principles in 5 U.S.C. § 2301 (b)(3) regarding equal pay and
appropriate incentives. As noted above, the regulation does no more than state a limit
on the amount of a relocation incentive payment that an agency may ma ke.
5 As OPM noted in its submission, RRF, Tab 6 at 5, challenges to Federal agency
decisions regarding entitlement to compensation, including relocation incentives, may
be made pursuant to 31 U.S.C. § 3702 (a)(2) and 5 C.F.R. part 178.
6
of the Merit Systems Protection Board in this proceedin g. Title 5 of the Code of
Federal Regulations, section 1203.12(b) ( 5 C.F.R. § 1203.12 (b)).
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MCMILLAN_PETER_ANDREW_CB_1205_15_0005_U_1_FINAL_ORDER_1970475.pdf | 2022-10-19 | null | CB-1205 | NP |
4,011 | https://www.mspb.gov/decisions/nonprecedential/TARRAB_ALAN_DC_0752_21_0574_I_1_FINAL_ORDER_1970476.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ALAN TARRAB,
Appellant,
v.
ENVIRONMENTAL PROTEC TION
AGENCY,
Agency.
DOCKET NUMBER
DC-0752 -21-0574 -I-1
DATE: October 19, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alan Tarrab , Herndon, Virginia, pro se.
Nathanael Nichols , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chair man
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his involuntary resignation appeal for lack of jurisdiction . On petition
for review, the appellant argues that the initial decision is contrary to U.S.
Supreme Court precedent, that the administrative judge ignored issues he raised
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
and did not c onstrue the facts in his favor, that the administrative judge was not
lawfully appointed, and that the administrative judge attempted to blame the
appellant for perpetrating discrimination . Petition for Review (PFR) File, Tab 1
at 4-7. 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 outcom e 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 DE NY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this fi nal decisi on. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and 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 For the first time on petition for review, the appellant argues that the administrative
judge w as not properly appointed. PFR File, Tab 1 at 4. Because the appellant did not
timely raise that argument before the administrative judge , we will not address it on
petition for review . McClenning v. Department of the Army , 2022 MSPB 3 , ¶ 25.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
appropriate for your situation and the rig hts described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guid e for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
4
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, o r other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you subm it 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 comme rcial delivery or
by a method requiring a signature, it must be 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 Whistleblo wer Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activiti es listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 pr actice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 Presiden t on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent juris diction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | TARRAB_ALAN_DC_0752_21_0574_I_1_FINAL_ORDER_1970476.pdf | 2022-10-19 | null | DC-0752 | NP |
4,012 | https://www.mspb.gov/decisions/nonprecedential/FREEMAN_BRUCE_DA_3443_16_0392_I_1_FINAL_ORDER_1970554.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BRUCE FREEMAN,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DA-3443 -16-0392 -I-1
DATE: October 19, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bruce Freeman , Austin, Texas, pro se.
Paul C. Wolf , Esquire, Dallas, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial deci sion, which
dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required p rocedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Tit le 5 of the Code of
Federal R egulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Bo ard’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The agency removed the appellant from his Mail Processing Clerk position
for unacceptable conduct –failure to report for duty. Initial Appeal File (IAF),
Tabs 2 -3, Tab 6 at 10. The appellant filed an appeal alleging that he was not
afforded due process and was deprived of the opportunity to work prior to the
issuance of the notice of removal. IAF, Tab 2 at 6. The appellant further alleged
that these actions wer e taken in retaliation for his prior protected union and equal
employment opportunity activity. Id.
¶3 On June 16, 2016, the administrative judge issued an acknowledgment order
notifying the appellant of the requirements to establish Board jurisdiction ov er his
appeal and ordering the appellant to file evidence and argument establishing
jurisdiction. IAF, Tab 4 at 2. The agency filed a motion to dismiss in which it
argued that the Board lacked jurisdiction over the appeal because the appellant
was not a preference eligible, a supervisor or manager, or an employee engaged in
personnel work; and that the appellant neither argued nor established a restoration
claim. IAF, Tab 6 at 5 -7. The appellant did not respond to the administrative
judge’s order or to the agency’s motion to dismiss. IAF, Tab 7, Initial Decision
3
(ID) at 2. Subsequently, the administrative judge issued an initial decision
dismissing the appeal for lack of jurisdiction. ID. The administrative judge
found that the appellant was not a pr eference -eligible individual and was not a
supervisor or management employee or an employee engaged in personnel work
in other than a purely nonconfidential clerical capacity, and thus the Board lacked
jurisdiction over the appeal. ID at 2. The administr ative judge further found that,
because the Board lacked jurisdiction over the appeal, she was without authority
to address the appellant’s retaliation and possible whistleblower reprisal claims.
Id.
¶4 The appellant has filed a petition for review in which he argues that he did
not receive an acknowledgment order or any other information regarding his
appeal and therefore he was unable to provide information as to why the Board
has jurisdiction over his appeal. Petition for Review (PFR) File, Tab 1. The
appellant asserts that he did not learn his case was closed until he called the
Board’s Dallas Regional Office. Id. He does not attach any supplemental
information regarding jurisdiction to his petition for review. Id. The agency has
filed a response opp osing the appellant’s petition. PFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). A U.S. Postal Service
employee may file a Board appeal under 5 U.S.C. chapter 75 only if he is covered
by 39 U.S.C. § 1005 (a) or 5 U.S.C. § 7511 (a)(1)(B)(ii). 5 U.S.C. § 7511 (b)(8).
Thus, to app eal an adverse action under chapter 75, a Postal Service employee
must meet the following criteria: (1) he must be 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 must have
4
completed 1 year of current continuous service in the same or similar positions.
Toomey v. U.S. Postal Service , 71 M.S.P.R. 10 , 12 (1996).
¶6 On review, the appellant asserts the Board has jurisdiction over his appeal
but does not provide any evidence or argument in support of this claim. PFR
File, Tab 1. As the administrative judge properly foun d, the appellant does not
meet the criteria that he, as a Postal Service employee, must meet for the Board to
have jurisdiction over the appeal. The administrative judge properly reviewed the
evidence set forth in the record and found that the appellant w as not a preference
eligible, a management or supervisory employee, or an employee engaged in
personnel work in other than a nonconfidential clerical capacity. ID at 1 -2.
¶7 The appellant’s argument that he did not receive an acknowledgment order
or other in formation regarding his appeal, and consequently did not have the
opportunity to prove jurisdiction, is also unavailing. When a certificate of service
indicates that a document was mailed to the appellant’s address of record, it is
presumed that it was du ly delivered to, and received by, the appellant. Deville v.
Government Printing Office , 93 M.S.P.R. 187 , ¶ 11 (2002); Santos v. U. S. Postal
Service , 77 M.S.P.R. 573 , 577 (1998). The certificate of service appended to the
administrative judge’s acknowledgment or der indicates it was mailed to the
appellant’s address of record. Compare IAF, Tab 4 at 17, with IAF, Tab 2 at 2.
Similarly, the agency’s motion to dismiss and the administrative judge’s initial
decision indicate they were mailed to the appellant’s address of record. Compare
IAF, Tab 6 at 13, Tab 8, with IAF, Tab 2 at 2. The appellant has not argu ed that
the address on each of the referenced certificates of service was not his address of
record or that there is another reason he did not receive his mail. The appellant’s
allegation that he did not know about the acknowledgment order is insufficient to
rebut the presumption that the order and subsequent motion to dismiss and initial
decision were delivered to and received by the appellant. Deville , 93 M.S.P.R.
187, ¶ 11.
5
¶8 Finally, the administrative judge properly found that the Board lacks
jurisdiction over the appellant’s retaliation claims. Although Postal Service
employees may raise retaliation as an affirmative defense, th e Board is without
jurisdiction to hear such claims in the absence of an otherwise appealable action.
See Hicks v. U.S. Postal Service , 114 M.S.P.R. 232 , ¶ 13 (2010) (finding that
allegations of discrimination and retaliation did not confer jurisdiction in the
absence of an otherwise appealable action); Wren v. Department of the Army ,
2 M.S.P.R. 1 , 2 (1980) (determining that prohibited personnel practices under
5 U.S.C. § 2302 (b) are not an independent source of Board jurisdi ction), aff’d ,
681 F.2d 867 , 871 -73 (D.C. Cir. 1982). Furthermore, Postal Service employees
may not file an individual right of action appeal be cause the Postal Service is not
a covered agency under the Whistleblower Protection Act. 5 U.S.C.
§ 2302 (a)(2)(C); Matthews v. U.S. Postal Service , 93 M.S.P.R. 109 , ¶ 13 (2002);
Mack v. U.S. Postal Service , 48 M.S.P.R. 617 , 621 (1991); see Banks v. Merit
Systems Protection Board , 854 F.3d 1360 , 1362 -63 (Fed. Cir. 2017 ) (finding that
the U.S. Postal Service is not an Executive agency for the purposes of Title 5). In
the absence of an appealable action, we find that the administrative judge
properly dismissed the appeal in its entirety.
NOTICE OF APPEAL RIG HTS2
You ma y obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file . 5 U.S.C. § 7703 (b).
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 mos t appropriate in any matter.
6
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposi tion of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decisi on. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
8
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC v ia commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Wh istleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Fed eral Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law b y the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov /probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Co urt_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | FREEMAN_BRUCE_DA_3443_16_0392_I_1_FINAL_ORDER_1970554.pdf | 2022-10-19 | null | DA-3443 | NP |
4,013 | https://www.mspb.gov/decisions/nonprecedential/SAYERS_JAMES_W_NY_0752_16_0277_I_1_FINAL_ORDER_1970599.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JAMES W. SAYERS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
NY-0752 -16-0277 -I-1
DATE: October 19, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
James W. Sayers , Saranac, New York, pro se.
Michael R. Salvon , Esquire, Windsor , Connecticut, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal as untimely filed without good cause shown for the
delay . Generally, we grant petitions such as this one only in the following
circumstances: the initia l decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during eithe r 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 Effective September 11, 2015, the agency removed the app ellant from
Federal service based on nine specifications of u nacceptable conduct. Initial
Appeal File (IAF), Tab 14 at 15 -18. In its decision letter, t he agency advised the
appellant that he had a right to file a Board appeal concerning his removal and
advised him of the proper filing deadlines. Id. at 17. The a gency also informed
him that, if he failed to file a Board appeal within the applicable time limit, he
would have no further right of appeal before the Board. Id.
¶3 On July 20, 2016, the appellant filed an appeal of his removal. IAF, Tab 1.
Because the appeal appeared to be untimely filed, the administrative judge issued
an order advising the appellant that he had the burden of proof on timeliness and
ordering him to file evidence and argument establishing that either his appeal was
timely filed or that good cause existed for the delay. IAF, Tab 10. In response to
the timeliness order, the appellant stated that he filed his appeal after the deadline
because his union representative wrongly advised him that he could file either a
griev ance or a Board ap peal—but not both —and that he filed a grievance with the
agency. IAF, Tab 19 at 3.
3
¶4 In an initial decision based on the written record, the administrative judge
dismissed the appeal as untimely filed without good cause shown for the delay.
IAF, Tab 23, Initial Decision (ID) . He found that the appellant timely grieved his
removal through a negotiated grievance p rocedure, that the matter was later
referred for arbitration und er that procedure, and that the arbitrator issued a
29-page award denying the grie vance . ID at 2. He also found that, even though
the effective date of the appellant’s removal was September 11, 2015, the agency
kept him in a pay status until October 15, 2015 , and placed him in a
leave -without -pay status until the arbitrator issued a decision on June 29, 2016 .
ID at 3. The administrative judge therefore concluded that, even assuming that the
removal was effective October 15, 2015, rather than September 11, 2015, the
appellant filed his appeal over 8 months late. Id.
¶5 Concerning good cause, the administrative judge observed that the agency’s
decision letter properly notified the appellant of the time limit for filing a Board
appeal. ID at 4. He also found it well settled that U.S. Postal Service employees
can file both a grievance an d a Board appeal concerning the same action and that,
even if his union representative had misinformed him of his appeal rights , the
appellant is responsible for the actions of his union official . ID at 5. He also
found that no one from the agency ever misinform ed the appellant about his
rights. Id. The administrative judge therefore concluded that the appellant failed
to raise a nonfrivolous allegation establishing good cause for his excessive delay
in filing his Board appeal. Id.
¶6 The appellant has filed a petition for review of the initial decision, and the
agency has filed a response in opposition. Petition for Review (PFR) File,
Tabs 1, 3. On review, the appellant does not challenge the administrative judge’s
findings that he filed his appeal more than 8 months after the filing deadline and
that he failed to make a nonfrivolous allegation that good cause existed for the
4
excessive delay in filing. We discern no basis to disturb these findings and,
accordingly, affirm the initial decision.2
¶7 The appellant states that he would like the Board to review the initial
decision because the administrative judge incorrectly claimed that he did not have
the right to overrule an arbitrator’s decision. PFR File, Tab 1 at 3. In support of
his argument, h e attaches a print out from the “Frequently Asked Questions”
section of the Board’s e-Appeal online site, which states that, in certain
circumstances, appellants who are members of a bargaining unit may appeal an
arbitrator’s decision to the Board. Id. at 4. Because the administrative judge
dismissed the appeal on timeliness grounds, however, he did not reach the issue
of the Board’s jurisdiction to review the arbitrator’s decision. Moreover, the
same printout advises that a “preference eligible Postal Se rvice employee [such as
the appellant] can file both a grievance and a Board appeal from the same action,
but does not have a right of Board review of an arbitration decision.” Id.
¶8 The appellant additionally argues that the arbitrator’s decision was “se xist,”
and that the arbitrator based his decisio n on “feelings and not facts.” PFR File,
Tab 1 at 3. These arguments, however, are not relevant to determin ing whether
the appellant timely filed his removal appeal or whether good cause exists for the
delay. See M arasco v. U.S. Postal Service , 66 M.S.P.R. 555 , 558 (1995) (finding
that the appellant’s arguments regarding the me rits of the un derlying action wer e
not relevant to the timeliness issue). Because these arguments are not relevant to
the timeliness issue, and because the appellant has otherwise failed to set forth
2 The Board has viewed the removal of a U.S. Postal Service employee who is retain ed
on the agency’ s rolls in a nonpay status until the final disposition of a grievance as
being constructively remove d on the effecti ve date contained in the agency’ s decision
letter , rather than on the date when the employee eventually is separated from the rolls.
Hopkins v. U.S. Postal Service , 108 M.S.P.R. 25 , ¶ 9 (2008). Therefore, we agree with
the administrative judge’s implied determination that the 30 -day time period t o file his
removal appeal did not commence on the date the agency ultimately separated the
appellant from its rolls .
5
any argument to establish good cause for his excessive filing delay , we find no
basis to disturb the initial decision.
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
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 dec isions. 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 availabl e at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposi tion of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
7
discrimination based on race, color, re ligion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
8
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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 Feder al
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdict ion expired on
December 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. Cou rt of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respe ctive websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SAYERS_JAMES_W_NY_0752_16_0277_I_1_FINAL_ORDER_1970599.pdf | 2022-10-19 | null | NY-0752 | NP |
4,014 | https://www.mspb.gov/decisions/nonprecedential/BALLARD_COLLINS_LISA_M_SF_0752_13_0617_X_1_FINAL_ORDER_1970667.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LISA M. BALLARD -COLLINS,
Appellant ,
v.
DEPARTMENT OF THE ARMY,
Agency .
DOCKET NUMBER
SF-0752 -13-0617 -X-1
DATE : October 19, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Maria S. Lillis , Honolulu, Hawaii, for the appellant.
Rachael Orejana , Fort Shafter, Hawaii, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 This compliance proceeding was initiated by the appellant’s May 31, 2016
petition for enforcement of the Board’s March 24, 2016 Final O rder.
Ballard -Collins v. Department of the Army , MSPB Docket No. SF -0752 -13-0617 -
C-1, Compliance File (CF), Tab 1; Ballard -Collins v. Department of the Army ,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required t o follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
MSPB Docket No. SF-0752 -13-0617 -I-1, Final Order (Mar. 24, 2016) . On
November 21, 2016, the administrative judge issued a compliance initial decision
finding the agency not in compliance with the March 24, 2016 Final O rder, and
the agency’s noncompliance was referred to the Board for consideration. CF, Tab
13, Compliance Initial Decision (CID). For the reasons discussed below, we now
find the agency in compliance and DISMISS the petition for enforcement.
¶2 In th e November 21, 2016 compliance initial decision, the administrative
judge found that the agency was not in compliance because it failed to
demonstrate that it: (1) cancelled the appellant’s removal; and (2) paid the
appellant all back pay, interest, and b enefits for the back pay period. CID at 6 -8.
As a result, the administrative judge ordered the agency to provide evidence that
it: (1) canceled the appellant’s removal; and (2) paid the appellant all back pay,
interest, and benefits for the back pay per iod, with a narrative explanation of how
it arrived at its calculations, along with an accounting of any deductions and any
other adjustments. CID at 8.
¶3 On December 21, 2016, the agency submitted evidence of its attempt to
reach full compliance with the B oard’s March 24, 2016 Final O rder.
Ballard -Collins v. Department of the Army , MSPB Docket No. SF -0752 -13-0617 -
X-1, Compliance Referral File (CRF), Tab 2. On January 23, 2017, because some
of the documentation submitted on December 21, 2016, was not fully readable,
the agency resubmitted its documentation. CRF, Tabs 5 - 6. On the same day, the
appellant submitted her response to the agency’s December 21, 2016 pleading,
alleging that the agency was not yet in full compliance. CRF, Tab 7. While the
agency ’s submission showed that the appellant’s removal was canceled and that
her leave had been restored, it did not demonstrate full compliance, as it failed to
provide sufficient detail as to several areas of its back pay award, including its
back pay and int erest calculations, deductions made for a prior annual leave
payout, allotments, and any performance award owed to the appellant. CRF,
3
Tab 8. Accordingly, on February 27, 2017, the Board ordered the agency to
submit additional evidence providing these de tails. Id.
¶4 On March 29, 2017, the agency submitted its response to the Board’s
February 27, 2017 Order, including exhibits that provided further details of the
appellant’s back pay award and narrative statements describing the multiple
components of the b ack pay award. CRF, Tabs 9 -10. On April 25, 2017, the
appellant submitted her response to the agency’s submission, in which she
claimed that the agency still had not demonstrated full compliance. CRF, Tab 11.
However, the appellant did not provide any details as to why she believed the
agency’s submissions did not establish compliance. Id.
¶5 A careful review of the agency’s latest submission shows that, despite the
appellant’s general objection, the agency has now reached full compliance.
Viewed tog ether with the agency’s narrative statements, the submitted back pay
spreadsheets, summary sheets, and master pay history documents provide full
detail of the appellant’s back pay award and further verify the agency’s claims
concerning its withholdings for the annual leave payout, social security, and
union dues.2 CRF, Tabs 9 -10. Moreover, the agency’s submission includes the
required interest calculations and explains the basis for the performance award
included in the back pay award. CRF, Tab 9 at 6, 1 4-16. Therefore, based on the
agency’s submission, and because the appellant has not provided any explanation
as to why the agency’s submissions may be incorrect, we find that the agency is
now in full compliance with the Board’s March 24, 2016 Final O rder.
¶6 Finally, regarding the appellant’s April 25, 2017 request for sanctions, we
deny the request. The Board’s sanction authority is limited to the sanctions
necessary to obtain compliance with a Board order. Mercado v. Office of
2 There appears to be a slight discrepancy of $0.88 between the agency’s narrative
description of the annual leave payout, and what its actual master pay history shows
was paid. CRF, Tab 9 at 5, Tab 10 at 4. Because the master pay history is the
document intended to demonstrate compliance, we find that this discrepancy does not
otherwise void the agency’s attempt to reach compliance.
4
Personnel Management , 115 M.S.P.R. 65 , ¶ 8 (2010) (stating that the Board’s
ability to award sanctions is a means to enforce compliance , and once compliance
has been demonstrated , it would be inappropriate to impose sanctions). Here,
because the agency complied with the March 24, 2016 Final O rder, we are
without authority to impose sanctions in this matter.
¶7 Accordingly, the Board finds th at the agency is in compliance and dismisses
the petition for enforcement. This is the final decision of the Merit Systems
Protection Board in this compliance proceeding. Title 5 of the Code of Federal
Regulations, section 1201.183(b) ( 5 C.F.R. § 1201.183 (b)).
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be fo und at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DEC ISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the follow ing summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
3 Since the issuance of the initial decision in this matter, the B oard may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding wh ich cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicab le time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particu lar forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rul es of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding p ro bono representation
6
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discriminati on. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar d ays after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their resp ective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employm ent
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operation s within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
7
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Op portunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunit y Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclos ures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your j udicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then yo u may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of cert ain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov . Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U .S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses t he services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BALLARD_COLLINS_LISA_M_SF_0752_13_0617_X_1_FINAL_ORDER_1970667.pdf | 2022-10-19 | null | SF | NP |
4,015 | https://www.mspb.gov/decisions/nonprecedential/SIMMONDS_GIBSON_MAUREEN_A_DA_0752_16_0092_I_1_FINAL_ORDER_1969947.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MAUREEN A. SIMMONDS GIBSON,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DA-0752 -16-0092 -I-1
DATE: October 18, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Maureen A. Simmonds Gibson , Killeen, Texas, pro se.
Blaine Markuson , Esquire, Fort McCoy, Wisconsin, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the in itial decision, which
sustained her removal for failure to maintain a condition of employment . For the
reasons set forth below, the appellant’s petition for review is DISMISSED as
untimely filed without good cause shown. 5 C.F.R. § 1201.114 (e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
BACKGROUND
¶2 Effective November 1, 2015, the agency removed the appellant from the
position of U .S. Army Reserve Unit Admini strator for failure to maintain a
condition of employment . Initial Appeal File (IAF), Tab 5 at 15, 17-19. On
November 20, 2015, t he appellant filed an appeal through the Board’s e-Appeal
system in which she alleged that the removal was “rushed” because she had
requested and was approved to take leave under the Family and Medical Leave
Act of 1993 (FMLA). IAF, Tab 1 at 6. On April 12, 2016, the administrative
judge held a telephonic hearing in the appeal , and on Ma y 26, 2016, she issued an
order reopening the record to allow the parties an opportunity to file evidence and
argument on the appellant’s affirmative defense and notifying the appellant of her
burden to establish by preponderant evidence that her FMLA acti vity was a
motivating f actor in the removal. IAF, Tab s 15-16. In her May 26, 2016 Order,
the administrative judge ordered the appellant to file evidence and argument
regarding her affirmative defense by June 2, 2016 , and warned that if the
appellant fail ed to file a response by the deadline, she would have w aived her
affirmative defense. IAF, Tab 16 at 3. The appellant failed to respond to the
order, and on June 10, 2016, the administrative judge issued an initial decision
affirming the agency’s removal action. IAF, Tab 17, Initial Decision (ID) . The
initial decision informed the appellant that the decision would become final on
July 15, 2016, unless a petition for review was filed by that date and informed the
appellant how to file a petition for revi ew. ID at 4-5. The initial decision reflects
that it was sent to the appellant , as a registered electronic filer (e-filer) , by
elect ronic mail on June 10, 2016. IAF, Tab 18.
¶3 The appell ant sent correspondence to the Board’s Dallas Regional Office
dated August 20, 2016, which was then forwarded to the Office of the Clerk of
the Board. Petition for Review (PFR) File , Tab 1. In response to a request for
clarification from the Clerk of the Board, the appellant confirmed that she
3
intended this corresp ondence to be considered a petition for review. PFR File ,
Tabs 2 -3. The Clerk of the Board informed the appellant that her petition was
untimely filed and notified her that such a petition must be accompanied by a
motion to accept the filing as timely or to waive the time limit for good cause.
PFR File, Tab 4 at 1-2. The Clerk’s notice afforded the appellant an opportunity
to file the required motion. Id. at 2.
¶4 The appellant submitted a motion and sworn statement addressing her
untimely filing . PFR File, Tab 5. In her sworn statement, the appellant first
asserted that she did not view the initial decision in her personal email until on or
about July 8, 2016. Id. at 3. She s tated that, following the hearing in April 2016,
she reviewed he r emails an d checked the Board r epository for the next 2 months
but was not aware of the affirmative defense order. Id. She further stated that
she did not receive any teleph one contact regarding the order , whereas she had
been contacted about orders issued and her deadline to respond by telephone in
the past .2 Id. The appellant also asserted that she composed a letter dated
July 20, 2016 , and mailed the letter the following week, but she misaddressed the
envelope enclosing the letter, and the letter was returned to her. Id. She stated
that she then updated the date of the letter to August 20, 2016, corrected the
address, and mailed the letter later accepted by the Board as her peti tion for
review. Id.
¶5 The agency subsequently submitted a response opposing the appellant’s
petition, and the appellant submitted a reply to the agency’s response. PFR F ile,
Tabs 6 -7.
2 It is not clear whether the appellant is asserting that she did not receive telephone
contact regarding the affirmative defense order, the initial decision, or both ;
accordingly, we address the appellant’s argument with respect to the initial decision.
See infra ¶ 8.
4
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 A petition for review generally must be filed within 35 days after the date
of the i ssuance 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 de cision. 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). 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 partic ular circumstances of the case.
Rivera v. Social Security Administration , 111 M.S.P.R. 581, 583 (2009 ) (citing
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 inabili ty to timely file her
petition. Id. at 583 -84 (citing 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) ). Only if the
appellant demonstrates good cause does the Board determine whether the agency
has shown it would be prejudiced by a waiver of the time limit. Moorman ,
68 M.S.P.R. at 63.
¶7 To the extent the appellant may be attempting to show that she received the
initial decision on July 8, 2016 , we nevertheless deem her to have received the
initial decision on June 10, 2016 . The appellant elected to register as an e -filer at
the inception of her appeal. IAF, Tab 1 at 3. The appeal form an d the Board’s
e-filer regulations provide that, as a registered e -filer, the appellant agreed to
accept service of documents through electronic service and was required to
5
monitor her case activity at the Repository at e -Appeal Online to ensure she
receive d all case related documents . Id.; 5 C.F.R. § 1201.14 (e)(1) , (j)(3) .
Moreover, our regulations prov ide that Board documents served electronically on
registered e -filers are deemed received on the date of electronic submission .
5 C.F.R. § 1201.14 (m)(2). When a statute or regulation “deems” som ething to
have been done, the event is considered to have occurred whether or not it
actually did. Rivera , 111 M.S.P.R. at 584 (citing Lima v. Department of the Air
Force , 101 M.S.P.R. 64 , ¶ 5 (2006) ). The administrative judge’s initial decision
indicates that it was served on the appellant by electronic mail on June 10, 2016 ,
and the appellant acknowledges that she received an email regarding the initial
decision . IAF, Tab 18 ; PFR File, Tab 5 at 3 . The appellant does not explain why
she ceased monitoring her email and the Repository at e -Appeal Online and only
reviewed the decision approximately 4 weeks following service. PFR File, Tab 5
at 3. There is no indication that the email notification the appellant received
regarding the initia l decision was received after the June 10, 2016 date of service.
¶8 The appellant’s argument that she should have received a telephone call
regard ing the initial decision does not excuse her lack of awareness of its
issuance . The record reflects that on one occasion, the administrative judge
contacted the appellant by telephone after the appellant failed to appear for a
prehearing conference schedu led on the date and time set forth in the
administrative judge’s hearing order. IAF, Tab 12 at 1 . The administrative
judge’s order memorializing the conversation reflects that the appellant did not
allege that she did not receive the Board’ s email inform ing her that the hearing
order was added to the Repository and reported that she had not checked the
Repository . Id. The appellant has acknowledged that she monitor ed her email
and the Repository following this conversation. PFR File, Tab 5 at 3. She h as
failed to cite any law, rule, or regulation that would obligate the Board to
telephone her every time it issues an order or initial decision, and we are not
6
aware of any. The appellant could not have reasonably believed that her failure
to receive telephone contact regarding the initial decision excused her from
monitoring her email and the Repository for new documents or, once she received
the decision, from compl ying with the deadline for filing the petition for review
set forth in the initial decision . Accordingly , we deem the appellant to have
timely received the initial decision on June 10, 2016.
¶9 The appellant’s final argument that she misaddressed the petition for review
is insufficient to show that she exercised due diligence to time ly file the petition
under the circumstances . Despite allegedly viewing the initial decision for the
first time on or about July 8, 2016, a week prior to the deadline for filing a
petition for review, the appellant composed the petition 5 days after the d eadline
and mai led it the week after its composition. PFR File, Tab 5 at 3. Even if the
appellant misaddressed the petition, she mailed it at least 10 days after the
deadline to file the petition. Id. The appellant provides neither an explanation
for t his delay nor the address to which she initially mailed the petition . Id.
Therefore , the appellant has provided insufficient evidence to show she exercised
due diligence to timely file her petition , or that circumstances beyond her control
affected her a bility to comply with the time limits , and thus has not established
good cause for the untimely filing . Cf. Norrup v. Department of the Navy ,
87 M.S.P.R. 444 , ¶ 7 (2001) ( holding that good cause for waiving the time limit
for an appeal was shown where the pro se appellant demonstrated that he filed a
timely but misaddressed submission) ; Sanford v. Department of Defense ,
61 M.S.P.R. 207 , 210 (1994) (holding that f ailure to follow filing instructions was
good cause for a 12 -day filing delay whe n the appellant filed an otherwise timely
appeal with his employi ng agency and filed with the Board as soon as he learned
of his mistake) .
¶10 As stated above, w e deem the appell ant to have received the initial decision
on June 10, 2016; therefore , the deadline to file the p etition for review was
7
July 15, 2016. ID at 4 . The petition for review was not filed until August 20,
2016, over 1 month after the filing deadline, which constitutes a significant delay
in filing with no showing of good cause for the delay . See Crook v. U.S. Postal
Service , 108 M.S.P.R. 553 , 555 (finding a 1-month delay in filing a petition for
review was significant ), aff’d , 301 F . App’x 982 (Fed. Cir. 2008) ; Blankenship v.
Department of Veterans Affairs , 98 M.S.P.R. 641 , 643 (2005) (finding a 25 -day
delay in filing a petition for review was significant).
¶11 Accordingly, we dismiss the petition for review as untime ly 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 appellant’s removal.
NOTICE OF APPEAL RIG HTS3
You m ay obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
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
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono re presentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC revie w of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
9
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims onl y, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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. 2 0507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. C ourt 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 co urt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 Circui t
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petiti oners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our we bsite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorne y will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SIMMONDS_GIBSON_MAUREEN_A_DA_0752_16_0092_I_1_FINAL_ORDER_1969947.pdf | 2022-10-18 | null | DA-0752 | NP |
4,016 | https://www.mspb.gov/decisions/nonprecedential/KING_TONY_AT_0752_19_0350_I_1_FINAL_ORDER_1970020.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TONY KING,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
AT-0752 -19-0350 -I-1
DATE: October 18, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tony King , Anniston, Alabama, pro se.
Jose Calvo , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition fo r review of the initial decision, which
sustained his removal . On petition for review, the appellant argues that he could
not be removed while he was reinstated pursuant to an interim relief order issued
in a prior Board appeal in King v. Department of Ag riculture , MSPB Docket
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c).
2
No. AT-0752 -18-0079 -I-1. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge ’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or invo lved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner ’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under s ection 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board ’s final decision. 5 C.F.R. § 1201. 113(b).
¶2 In 2017, the agency removed the appellant from his GS -12 Enforcement
Investigative and Analysis Officer position with the Food Safety and Inspection
Service based on the charges of (1) unprofessional conduct and (2) failure to
follow instructi ons. King v. Department of Agriculture , MSPB Docket
No. AT-0752 -18-0079 -I-1, Initial Appeal File (0079 IA F), Tab 5 at 15 -19,
153-59. The administrative judge in that appeal issued an initial decision finding
that the agency failed to prove the charges an d that the appellant proved that the
agency retaliated against him for having exercised his equal employment
opportunity rights. 0079 IAF, Tab 25, Initial Decision at 20. She ordered interim
relief if either party filed a petition for review, id. at 21-22, and the agency
reinstated the appellant on that basis, King v. Department of Agriculture , MSPB
Docket No. AT -0752 -19-0350 -I-1, Initial Appeal File (IAF), Tab 9 at 66. The
agency has filed a petition for review of the initial decision , which is pending
with the Board .
3
¶3 While the appellant was employed on the basis of the interim relief order,
the agency initiated the removal action that is the basis of this appeal. IAF, Tab 6
at 27 -32, Tab 9 at 10 -15. He appealed that removal to the Board , and, after th e
appellant’s requested hearing , the administrative judge sustained the agency ’s
second removal action . IAF, Tab 29, Initial Decision. The essence of the
appellant’s claim on review is that the second removal action was per se improper
as contrary to the interim relief order in his first appeal. Petition for Review File,
Tab 1.
¶4 It is well settled that an interim relief order does not insulate an appellant
from a subsequent adverse action so long as that action is not inconsistent with
the initial decisi on. Rothwell v. U.S. Postal Service , 68 M.S.P.R. 466 , 468
(1995); Barcliff v. Department of the Navy , 62 M.S.P.R. 428 , 433 (1994); see also
Wilson v. Department of Justice , 66 M.S.P.R. 287 , 291, 296 –97 (1995) (finding
that a removal action is not per se improper because it was effected during the
interim relief period, although it was improper on its merits). When an agency
effects a second removal action during a period of interim relief ordered in an
initial decision in a prior removal action, and the appellant files an appeal of the
second action, the Board considers the second removal action on its merits. See
generally Wilson , 66 M.S.P.R. at 291, 296 -97. That the appellant was reinstated
pursuant to an interim relief order is irrelevant to the merits of the second
removal action. Thus, the administrative judge properly adjudicated the second
removal action on the merits and without reference to the fact t hat, at the time of
his removal, the appellant was reinstated pursuant to an interim relief order.
¶5 The appellant’s arguments on review do not show error in the
administrative judge’s findings that the agency proved the charged misconduct,
established a ne xus between the misconduct and the efficiency of the service, and
showed that the penalty of removal was within the tolerable limits of
4
reasonableness. We discern no reason to disturb the initial decision .2 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 where she considered the evidence as a
whole, d rew appropriate references, and made reasoned conclusions); see also
Broughton v. Department of Health & Human Services , 33 M.S.P.R. 357, 359
(1987) (same).
NOTICE OF APPEAL 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 provi de 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 decis ion, 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 rea d carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for m ore information.
2 The appellant does not challenge on review the administrative judge’s findings
regarding the affirmative defenses he raised below.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov /probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 Fe deral Circuit), within 30 calendar days after you
6
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accesse d through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you r eceive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later tha n 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
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 n o 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 re view 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 Appe als
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of ce rtain
whistleblower claims by any court of 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. 11 5-195,
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 Ci rcuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney no r warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | KING_TONY_AT_0752_19_0350_I_1_FINAL_ORDER_1970020.pdf | 2022-10-18 | null | AT-0752 | NP |
4,017 | https://www.mspb.gov/decisions/nonprecedential/TINKLE_ROSCOE_P_DA_0752_14_0377_I_2_FINAL_ORDER_1969284.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROSCOE P. TINKLE,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
DA-0752 -14-0377 -I-2
DATE: October 17, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joyce E. Kitchens , Esquire, Atlanta, Georgia, for the appellant.
Julie Rook Gold and Kevin L. Owen , Esquire, Silver Spring, Maryland, for
the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Trista n L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal . Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains errone ous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
or regulation or the erroneous 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 d ue
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 The following facts, as further detailed in the initial decision, are not
disputed. The appellant held the position of Supervisory Guide at Blanchard
Springs Caverns. Tinkle v. Department of Agriculture , MSPB Docket
No. DA-0752 -14-0377 -I-1, Initial Appeal File (IAF), Tab 8 at 14; Tinkle v.
Department of Agriculture , MSPB Docket No. DA -0752 -14-0377 -I-2, Appeal
File, Tab 6, Initial Decision (ID) at 2.2 Among other thing s, the position included
safety -sensitive duties, such as driving a passenger bus and responding to injuries
incurred by visitors to the caves. ID at 2. In January 2013, he was arrested on
marijuana char ges. Id. The agency subsequently approved his inclusion in its
“safe harbor” program, which allows an employee to avoid discipline if he admits
the drug use, completes counseling, and refrains from further drug use. Id.
However, in November 2013, the a ppellant underwent a urinalysis that tested
positive for marijuana. ID at 2 -3. As a result, the agency charged him with a
positive drug test and proposed his removal. ID at 3. The deciding official
sustained the action, effective April 2014, and this a ppeal followed. Id.
2 The administrative judge dismissed the initial appeal without prejudice for automatic
refiling at a later date to accommodate scheduling conflicts, resulting in the two docket
numbers associated with this one matter. IAF, Tab 49 , Initial Decision .
3
¶3 After holding the requested hearing, the administrative judge affirmed the
appellant’s removal. ID at 1. She found that the agency met its burden
concerning proof of the charge, nexus, and penalty. ID at 3 -10, 18 -20. She
further f ound that the appellant failed to prove his allegations of a due process
violation or disability discrimination. ID at 11 -15. Finally, the administrative
judge concluded that the appellant failed to timely raise his harmful procedural
error claim and, ev en if he had, the claim failed. ID at 15 -18.
¶4 The appellant has filed a petition for review, reasserting arguments
concerning chain of custody for his drug test as well as harmful procedural error.
Tinkle v. Department of Agriculture , MSPB Docket No. DA -0752-14-0377 -I-2,
Petition for Review (PFR) File, Tab 1 at 8 -23. The agency has filed a response,
and the appellant has replied. PFR File, Tabs 5 -6.
¶5 When an agency relies on a positive drug test to take an adverse action
against an employee, the agency mu st prove by preponderant evi dence that the
test was valid. Holton v. Department of the Navy , 123 M.S.P.R. 688 , ¶ 11 (2016) ,
aff’d , 884 F.3d 1142 (Fed. Cir. 2018) . To meet its burden, the agency must
establish that the urine sample that tested positive was the appellant’s by showing
that the chain of custody of the sample was maintained and verifiable. Id. Any
alleged violation of the agency’s drug -testing procedures is reviewed under the
harmful error standard. Id. Under this standard, reversal is only warranted if the
appellant proves that the procedural error was likely to have caused the agency to
reach a conclusion different from the one it would have reached in the absence or
cure of the error. Id.
¶6 The appellan t acknowledges a 20 -year history of marijuana use up to and
including his January 2013 arrest. PFR File, Tab 1 at 5 -6. H e also acknowledges
that he previously had figured out a way to pass prior drug testing required by the
agency, despite his marijuana use. Id. at 6. However, he denies using marijuana
during the period leading up to his November 2013 drug test and disputes the
4
test’s validity due to purported irregularities in the chain of custody. Id.
at 6, 8-13.
¶7 The appellant asserts that he provi ded the urine sample at approximately
2:15 p.m., yet the agency’s documentation suggests it was both collected and
transferred to Quest Diagnostics Courier at 11:20 p.m. and the agency failed to
account for the intervening hours. Id. at 9-11; Hearing Tran script (HT) at 202-04
(testimony of the appellant) ; IAF, Tab 27 at 24. He also asserts that while the
agency’s documentation indicates that his urine sample left the collection facility
at 11:20 p.m. and arrived at the Quest Diagnostics Laboratory at 2:00 a.m., that
span of time is insufficient to drive the distance between those locations and the
agency failed to prove its method of transport. PFR File, Tab 1 at 11 -12; IAF,
Tab 27 at 24, 28. Next, he notes that the chain of custody log contains a
signat ure from the receiving official at the Quest Diagnostics L aboratory, but
does not contain a signature from the courier to that individual. PFR File, Tab 1
at 12-13; IAF, Tab 27 at 24 -25. In addition, he acknowledges that the chain of
custody documentatio n indicates that his urine sample ar rived at the Quest
Diagnostics L aboratory with the sealing label intact, but nevertheless suggests
that the agency’s evidence is deficient because there are no clear pictures
showing th e same. PFR File, Tab 1 at 13; IAF, Tab 27 at 24, 86 -93. Finally, the
appellant generally alleges that the agency failed to prove that the specimen
tested was, in fact, the specimen he provided. PFR File, Tab 1 at 8 -9.
¶8 We considered comparable allegations of irregularities in Forte v.
Department of the Navy , 123 M.S.P.R. 124 (2016). In that case, the employee
disputed his positive drug test on a number of bases, inc luding allegations that the
individual who collected his specimen forgot to have him initial the
corresponding vials and called him back to do so after he already had left the
room. Id., ¶ 12. We concluded that the administrative judge should have
consid ered that claim under the harmful error standard. Id., ¶ 18. We further
found that, standing alone, the alleged collection error did not require reversal of
5
the employee’s suspension because he had not shown that the agency likely would
have reached a co nclusion different from the one it reached in the absence of that
error. Id., ¶ 19.3 For the same reason, the appellant’s arguments concerning
chain of custody fail in the instant appeal.
¶9 Although the appellant has identified ways in which the chain of c ustody
for his specimen could have been more clearly and elaborately documented, we
agree with the administrative judge’s conclusion that the agency met its burden of
proving the positive drug test charge by preponderant evidence. ID at 3 -5; see
5 C.F.R. § 1201.4 (q) (defining preponderant evidence as that “degree of relevant
evidence that a reasonable person, considering the record as a whole, would
accept as sufficient to find that a contested fact is more likely to be true than
untrue”). The agency presented extensive evidence showing, inter alia, that the
appellant initialed his specimen in a sealed vial containing identifying numbers,
qualified professionals analyzed the specime n marked with those initials and
identifying numbers, and the specimen tested positive for marijuana use. E.g.,
IAF, Tab 27 at 18 -115. We further agree with the administrative judge’s
conclusion that even if the matters identified by the appellant amount to
irregularities in the drug testing procedures, there is no indication that the agency
would have likely reached a different conclusion in the absence of those
3 In Forte , the Board ultimately found that the agency failed to prove its charge of
illegal drug use because, inter alia, the appellant consistently denied the drug use, he
produced a negative hair follicle test covering the same period as the agency’s positive
urine test, and the agency refused to provide the appellant with some of the urine
sample for a DNA test to verify that, despite collection irregularities, it was the
appellant’s. Forte , 123 M.S.P.R. 124 , ¶¶ 21 -25. Here, the appellant also denied the
alleged drug use and produced a negativ e hair follicle test. IAF, Tab 9 at 28 -29.
However, the administrative judge was not persuaded by these and other defenses, in
part because the appellant declined the opportunity to retest his urine sample and his
hair follicle test was conducted 3 month s after his p ositive urine test. ID at 6 -9; IAF,
Tab 9 at 28 -29, Tab 27 at 17; HT at 212 -13 (testimony of the appellant) . The
appellant’s petition for review does not contain any arguments concerning these
matters, and we find no reason to disturb the ad ministrative judge’s well -reasoned
findings.
6
purported irregularities. ID at 5 -6; see also Frank v. Department of
Transportation , 35 F.3d 1554 , 1557 -58 (Fed. Cir. 1994) (finding that an agency’ s
violation of its chain of custody procedures by leaving a specimen unattended did
not h arm or prejudice the employee because there was no evidence that any other
person had access to the specimen during the short time it was left unattended);
Forte , 123 M.S.P.R. 124 , ¶ 19.
¶10 The appellant’s harmful procedural error arguments are similarly
unavailing. PFR File, Tab 1 at 13 -23. The administrative judge found the claim
both untimely and without merit. ID at 15 -18. We fin d that it is not necessary to
address the merits of this affirmative defense because the argument was untimely,
without good cause shown .
¶11 The Board’s regulations provide that “[a]n appellant may raise a claim or
defense not included in the appeal at any ti me before the end of the conference(s)
held to define the issues in the case. An appellant may not raise a new claim or
defense after that time, except for good cause shown.” 5 C.F.R. § 12 01.24 (b).
Accordingly, the administrative judge twice instructed the appellant to identify
any and all defenses in his prehearing submissions, but the appellant’s response
included a general assertion of harmful procedural error without identifying wha t
that error might be. Compare IAF, Tabs 13, 23, with IAF, Tab 28 at 4.
Following the agency’s motion to strike this unexplained harmful procedural error
claim, the appellant asserted that he intended to preserve the argument in the
event that hearing te stimony provided a factual basis for that affirmative defense.
IAF, Tab 39 at 5 -6, Tab 40 at 8. Thereafter, the administrative judge issued an
order summarizing a prehearing conference and defining the issues. IAF, Tab 44.
The order did not identify ha rmful procedural error as a remaining claim. Id.
Although the appellant objected, he indicated that he did not yet have any facts to
support harmful procedural error. IAF, Tab 45 at 4 -5.
¶12 The appellant first identified specific allegations of a harmful procedural
error in closing arguments to his hearing. HT at 249 -54 (the appellant’s closing
7
argument) . He alleged that the agency violated 49 C.F.R. § 382.121 (b)(3) by
prematurely ord ering his return to safety -sensitive duties and requiring that he
undergo the drug test underlying his removal, without proper certification by his
drug counselor.4 Id. at 251 -52 (the appellant’s closing argument) . Through his
representative, the appellant defended the untimeliness of this argument by
asserting that he only learned of the nature and factual underpinnings of the
alleged harmful procedural error after obtaining testimony from his drug
counselor and the Drug Free Workplace Program Man ager at the hearing. Id.
at 251 (the appellant’s closing argument) ; PFR File, Tab 1 at 20 -22. However,
both were the appellant’s own witnesses. IAF, Tab 28 at 5, Tab 44 at 2.
Moreover, as the appellant essentially concedes in his reply brief, sufficien t
information existed in the written record to timely identify this alleged harmful
procedural error, even though the appellant faile d to do so. PFR File, Tab 6
at 10. Among other things, the written record included documentation predating
the agency’s d ecision on the removal action, where both the appellant and his
counselor asserted that he had not yet finished treatment when he was ordere d to
undergo the drug testing. I AF, Tab 9 at 16, Tab 10 at 7 -8. Accordingly, we agree
4 Section 382.121(b)(3) requires that “[a] qualified voluntary self -identification
program . . . must permit the employee to return to safety sensitive duties only upon
successful completion of an educational o r treatment program, as determined by a drug
and alcohol abuse evaluation expert, i.e., employee assistance professional, substance
abuse professional, or qualifie d drug and alcohol counselor.” 49 C.F.R.
§ 382.121 (b)(3) . According to the appellant and his drug counselor, he had not yet
completed his treatment program because that program consisted of 12 weekly sessions
with a psychologist followed by 12 monthly sessions with the drug co unselor and he
had undergone only the former, not the latter. E.g., PFR File, Tab 1 at 14 -15. The
agency disagrees, arguing that his completion of the 12 weekly psychotherapy sessions
satisfied his treatment program, the 12 monthly counseling sessions to follow amounted
to aftercare that did not implicate section 382.121(b)(3) , and the appellant’s drug
counselor was disingenuous in suggesting otherwise. PFR File, Tab 5 at 12 -13
(referencing IAF, Tab 10 at 34 -35, 37). The administrative judge found that this
defense failed, even if it were timely, because there was no persuasive evidence that the
aftercare was a barrier to the appellant’s return to safety -sensitive duties and the drug
testing. ID at 16 -18.
8
with the administrative judg e’s conclusion that the information needed to develop
this defense was within the appellant’s control prior to the end of the conferences
held to define the issues and he failed to provide good cause for delaying that
development until the hearing itself. ID at 16; see Franco v. U.S. Postal Service ,
27 M.S.P.R. 322 , 325 (1985) (recognizing that an administrative judge has wide
discretion to control the proceedings); see also Nugent v. U.S. Postal Service ,
59 M.S.P.R. 444 , 447 -48 (1993) (finding that an administrative ju dge properly
disallowed a claimed affirmative defense of alcoholism where the appellant failed
to raise it until after the status conference defining the issues); Roof v.
Department of the Air Force , 53 M.S.P.R. 653 , 658 (1992) (finding that an
administrative judge properly disallowed a disparate treatment affirmative
defense asserted during the hearing because it was not previously raise d in either
the prehearing submissions or prehearing conference). We will not addr ess this
untimely claim further. See Hansen v. Department of Homeland Security ,
911 F.3d 1362 , 1369 -70 (Fed. Cir. 2018) (declining to address a harmful
procedural error claim not raised before the administrative judge in a case
concerning a removal for a positive drug test).
¶13 Accordingly, we affirm the initial dec ision.
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
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
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono re presentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
10
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC revie w of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other i ssues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
11
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial revie w pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Fed eral Circuit or any court
of appeals of competent jurisdiction.6 The court of appeals must receive your
6 The original statutory provision that provided for judic ial review of certain
whistleblower claims by any court of 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 ju dicial review of
MSPB decisions in certain 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,” whic h is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.go v/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representatio n in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/C ourt_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | TINKLE_ROSCOE_P_DA_0752_14_0377_I_2_FINAL_ORDER_1969284.pdf | 2022-10-17 | null | DA-0752 | NP |
4,018 | https://www.mspb.gov/decisions/nonprecedential/EUGENIA_MERCEDES_DC_0752_16_0158_I_1_FINAL_ORDER_1969299.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MERCEDES EUGENIA,
Appellant,
v.
NATIONAL SCIENCE
FOUNDATION,
Agency.
DOCKET NUMBER
DC-0752 -16-0158 -I-1
DATE: October 17, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Edward H. Passman , Esquire , and Erik D. Snyder , Esquire,
Washington, D.C. , for the appellant.
Deanne Sobczak , Esquire and Daria J. Zane , Arlington, Virginia, for the
agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The agency has filed a petition for review , and the appellant has filed a
cross petition for review, of the March 16, 2017 initial decision in this appeal.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Initial Appeal File, Tab 51, Initial Decision; Petition for Review (PFR) File,
Tabs 1, 7. For the reasons set forth below, we DISMISS the appeal as settled.2
¶2 After the filing of the petition s for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant on
April 15, 2020, and by the agency on April 16, 2 020. PFR File, Tab 21. The
document provides, among other things, that the appellant would withdraw with
prejudice the above -captioned appeal in exchange for the promises made by the
agency . Id. at 6, 8.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determi ne whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11-21 (2017) ( holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement and
understand its terms , and that they do not intend for the agreement to be entered
2 On February 17, 2021, the agency submitted to the Board a request to withdraw its
pending pet ition for review, explaining that the parties had entered into a settlement
agreement resolving all matters at issue in the appeal. PFR File, Tab 19. In a
subsequent submission, the agency clarified that it was seeking dismissal of the appeal
as settled, rather than to voluntarily withdraw its pending petition for review. PFR File,
Tab 21. The appellant later moved to voluntarily withdraw her cross petition for
review. PFR File, Tab 22. Because this appeal is being dismissed as settled pursuant to
the parties’ settlement agreement, the appellant’s request to withdraw her cross petition
for review has been rendered moot.
3
into the record for en forcement by the Board. PFR File, Tab 21 at 13-14. As the
parties do not intend for the Board to enforce the settlement agreement, we need
not address the additional considerations regarding enforcement, and we do not
enter the settlement agreement into the record for enforcement by the Board.
¶5 In light of the foregoing , we find that dismissing the appeal “with prejudice
to refiling” (i.e., the parties normally may not refile this appeal) is appropriate
under these circumstances. This is the final decision of the Merit Systems
Protection Board in this appeal. Title 5 of the Code of Federal Regulations,
section 1201.113 ( 5 C.F.R. § 1201.113 ).
NOTICE OF APPEAL RIG HTS3
You may obt ain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and 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 fina l 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 gene ral rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decisi on. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
5
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you re ceive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 Appea ls
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 juri sdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S . Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’ s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Cir cuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | EUGENIA_MERCEDES_DC_0752_16_0158_I_1_FINAL_ORDER_1969299.pdf | 2022-10-17 | null | DC-0752 | NP |
4,019 | https://www.mspb.gov/decisions/nonprecedential/AHMAD_NAEEM_CH_1221_12_0462_W_2_FINAL_ORDER_1969382.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
NAEEM AHMAD,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-1221 -12-0462 -W-2
DATE: October 17, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Nasim Ahmad , Esquire, Houston, Texas, for the appellant.
Erin Buck Kaiser , Milwaukee, Wisconsin, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial bench decision,
which denied his request for corrective action in this individual right of action
(IRA) appeal. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings d uring 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 avail able 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 bench
decision to clarify that the parties may only stipulate to facts , but we AFFIRM the
chief administrative judge’s conclusion that the appellant proved that he made
whistleblowing disclosure s that were a contributing factor in the agency’s
decision to terminate him during his probationary period. We FURTHER
MODIFY the initial bench decision to find that the Medical Center Director had
some motive to retaliate against the appellant , but we AFFIRM the chief
administrative judge’s finding that the agency proved by clear and convincing
evidence that it would have terminated him absent his whistleblowing disclosures .
Except as express ly MODIFIED by this Final Order, we AFFIRM the initial
bench decision .
BACKGROUND
¶2 The following facts and chronology , as set forth i n the initial bench
decision , are generally undisputed. Ahmad v. Department of Veterans Affairs ,
MSPB Docket No. CH-1221 -12-0462 -W-2, Appeal File -2 (AF -2), Tab 40, Initial
Decision (ID). On October 25, 2009, t he appellant bega n working for the agency
as a physician . ID at 11; Ahmad v. Department of Veterans Affairs , MSPB
Docket No. CH-1221 -12-0462 -W-1, Initial Appeal File (IAF), Tab 6 at 448. On
3
August 4, 2011, the Acting Chief of Staff received a request to convene a
Summary Review Board (SRB)2 from th e Associate Chief of Staff for Primary
Care , who was also the appellant’s supervisor, to review concerns about the
appellant’s clinical practices. ID at 11; AF-2, Tab 25 at 30-31. On August 18,
2011, the Associate Chief of Staff for Primary Care conducted a special rating
which found that the appellant was unsatisfactory in his duties. ID at 11; IAF,
Tab 6 at 239-40. The Associate Chief of Staff for Primary Care made a formal
request for the SRB on August 19, 2011 , based on the appellant’s defic iencies,
including but not limited to numerous medication errors, inappropriate comments
on patient charts, a high degree of patient complaints and requests to change
providers, and improper protection of privacy information . ID at 11; IAF, Tab 6
at 221-22.
¶3 Effective August 20, 2011, the agency suspended the appellant’s clinical
privileges and placed him on administrative leave while the SRB was pending .
ID at 12; IAF, Tab 6 at 217-18. The SRB , comprised of five agency physicians,
convened on September 19, 2011, reviewed a binder of evidence and heard from
the appellant’s attorney . ID at 12-13; IAF, Tab 6 at 203-04, 210, 212 -403. The
SRB concluded that it had “serious, unanimous concerns about the [appellant’s]
competency and conduct,” and it recommended his termination. ID at 13; IAF,
Tab 6 at 203-04. The Acting Chief of Staff reviewed the SRB’s recommendation
and recommended that the appellant be terminated. IAF, Tab 6 at 201. The
Medical Center Director concurred with the SRB ’s recommen dation, and the
appellant was terminated during his probationary period , effective October 14,
2011. ID at 13; IAF, Tab 6 at 195, 197-98.
¶4 The appellant filed this IRA appeal, alleging that the agency terminated him
during his probationary period because of his whistleblowing disclosures. ID
2 The record reflects that the terms “Summary Review Board” and “Professional
Standards Board” are used interchangeably. Hearing Transcript 1 at 192-93. For
consistency, we only use the term “Summary Review Board” or SRB.
4
at 13; IAF, Tab 1. The appeal was dismissed without prejudice and refiled. ID
at 13-14; IAF, Tab 18; AF -2, Tab 1. The chief administrative judge found that
the appellant exhausted his administrative remedy with the Office of Special
Counsel and nonfrivolous ly alleged that he made protected disclosures that were a
contributing factor in the agency’s decision to terminate him. ID at 14; AF-2,
Tab 12 at 5, Tab 15 at 1-2. The parties entered in to several stipu lations. ID
at 14-15; AF -2, Tab 32 at 2. The chief administrative judge held the requested
hearing and issued a bench initial decision . ID at 1, 8-26; Hearing Transcripts
(HTs).3 Based on the parties’ stipulations, the chief administrative judge found
that the appellant prove d by preponderant evidence that he made protected
disclosures that were a contributing factor in the agency’s decision to terminate
him. ID at 14-16; HT-1 at 5 (preliminary remarks of the chief administrative
judge) . She also concluded that the agency proved by clear and convincing
evidence that it would have terminated the appellant absent his whistleblowing
disclosures. ID at 16-26. The chief administrative judge therefore denied the
appellant’s request for corrective actio n. ID at 1.
¶5 The appellant has filed a petition for review and a supplement to the
petition for review, the agency has filed a response, and the appellant has filed a
reply. Petition for Review (PFR) File, Tabs 1, 7, 10, 15. On review, the
appellant as serts that the chief administrative judge ignored his retaliation theory,
“misapplied ” the clear and convincing standard, improperly found similarly
situated comparators , and excluded evidence of non whistleblowers w ho were
treated more favorably . PFR File , Tab 7 at 8-20.4
3 The hearing in this case lasted 3 days. Citations to the first day of the hearing
(April 21, 2016) are listed as “HT -1,” the second day (April 22, 2016) as “HT -2,” and
to the third day (May 12, 2016) as “HT -3.”
4 Because the appellant’s supplemental petition for review includes citations to the
hearing transcripts, we refer to this document in our discussion of his arguments
on review.
5
DISCUSSION OF ARGUME NTS ON REVIEW
We modify the initial bench decision to clarify that the parties may only stipulate
to facts, but we affirm the chief administrative judge’s conclusion that the
appellant proved that he made whistleblowing disclosure s that were a
contributing factor in the agency’s decision to terminate him.
¶6 To establish a prima facie case of retaliation for whistleblowing disclosures,
the appellant must prove by preponderant evidence that he made a protecte d
disclosure that was a contributing factor in a perso nnel action taken against him.
5 U.S.C. § 1221 (e)(1) ; Lu v. Department of Homeland Security , 122 M.S.P.R.
335, ¶ 7 (2015).5
¶7 In the initial bench decision , the chief administrative judge cited to 5 C.F.R.
§ 1201.63 , which states that the parties may stipulate to any matter of fact and the
stipulation will satisfy the parties’ burden of proving the facts alleged . ID at 15.
The chief administrative judge found that the agency “stipulated” to the
appellant’s “protected disclosures” and to the knowledge/timing components of
contributing factor. Id. However, the Board has held that whether a disclosure is
protected is a matter of law not subject to stipulation. Wojcicki v. Department of
the Air For ce, 72 M.S.P.R. 628 , 634 (199 6); see King v. Department of Veterans
Affairs , 105 M.S.P.R. 21 , ¶ 16 n.2 (2007) (stating that the parties may stipulate to
facts, but not legal conclusions). We modify the initial bench decision to clarify
our understanding of the parties’ stipulation s, i.e., that the parties stipulate d to the
content and timing of the appellant’s two disclosures and that the Medical Center
Director had knowledge of the appellant’s disclosures before the effective date of
the termination .
5 All of the relevant events, including the appellant’s termination, occurred before the
December 27, 2012 effective date of the Whistleblower Protection Enhancement Act of
2012. Pub. L. No. 112-199, § 202, 126 Stat. 1465, 1476. We have considered those
amendments, but a different outcome is not warranted. We have also reviewed the
other relevant legislation enacted during the pendency of this appeal and have
concluded that it does not affect the outcome of the appeal.
6
¶8 Based in part on the parties’ stipulation of facts , we agree with the chief
administrative judge that the appellant made a protected whistleblowing
disclosure when , in June —July 2011, he disclosed that the Performance
Improvement Department was maintaining illegal files on providers and
discriminatorily using the information to criticize the providers’ work without
giving constructive assistance, as well as conducting sham peer reviews . ID
at 15; IAF, Tab 24 at 13; AF-2, Tab 12 at 17-27; see, e.g. , Wheeler v. Department
of Veterans Affairs , 88 M.S.P.R. 236 , ¶ 13 (2001) (stating that an abuse of
authority occurs when a Federal official or employee arbitrarily or capriciously
exercises power that adversely affects the rights of any person or that results in
personal gain or advantage to himself or to preferred other persons).
¶9 We further find that , in August 2011, he made a protected whistleblowing
disclosure when he disclosed that a particular doctor and the Vetera ns Integrated
Service Network (VISN ) management were mismanaging Federal funds. ID
at 15; AF-2, Tab 12 at 10-15; see White v. Department of the Air Force ,
63 M.S.P.R. 90 , 95 (1994) (explaining that gross mismanagement means a
management action or inaction which creates a substantial risk of significant
adverse impact upon the agency’ s ability to accomplish its mission) .6
¶10 Having affirmed the chief administrative judge’s determination that the
appellant made protected whistleblowing disclosures, we now turn to whether the
appellant proved that his whistleblowing disclosures were a contributing factor in
the agency’s decision to terminate him. One way to demonstrate contributing
factor is the knowledge/timing test, which allows an emp loyee to show through
circumstantial evidence, such as evidence that the official taking the personnel
action knew of the whistleblowing disclosure s and the personnel action occurred
within a period of time such that a reasonable person could conclude that the
whistleblowing disclosure s were a contributing f actor in the personnel action.
6 The appellant does not challenge the chief administrative judge’s finding that two
other disclosures were not protected, and we affirm that finding herein. ID at 14-15.
7
5 U.S.C. § 1221 (e)(1) (A)-(B); Carey v. Department of Veterans Affairs ,
93 M.S.P.R. 676 , ¶ 11 (2003). The chief administrative judge mentioned the
knowledge/timing test in the initial bench decision , ID at 15, and we supplement
her analysis herein.
¶11 This case is somewhat u nusual in that the appellant’s disclosures were made
in correspondence that he wrote but that did not bear his name or signature;
rather, the correspondence was signed or appeared to be authored by the union
president. E.g., AF -2, Tab 24 at 13, 27-43; HT-2 at 366, 373-74 (testimony of the
union president) . The Medical Center Director, who ultimately decided to
terminate the appellant , had knowledge of the correspondence. However, there is
conflicting evidence regarding when t he Medical Center Director learned that the
appellant authored the correspondence that contained the whistleblowing
disclosures. Compare HT-2 at 374-75 (testimony of the union president that the
Medical Center Director knew that it was the appellant who authored the letters at
the end of June 2011 or the beginning of July 2011 ), with HT-2 at 257-58
(testimony of the Medical Center Director that he di d not learn that the appellant
authored the letters until around August 8, 2011, or August 10, 2011 ). In any
event, w e need not resolve this discrepancy because the Medical Center Director
had such knowledge before the termination notice was issued . IAF, Tab 6
at 197-98.7 Thus, we find that the knowledge component is satisfied.
¶12 We also find that th e timing component of the knowledge/ timing test is
satisfied because the correspondence containing the appellant’s disclosures
occurred during the Jun e—August 2011 timeframe, and his termination was
effective on October 14, 2011 . See Ormond v. Department of Justice ,
118 M.S.P.R. 337, ¶ 13 (2012) (finding that 6 months between a disclosure and a
personnel action was sufficiently proximate to allow a reasonable person to
7 Although the termination letter was signed by another agency employee, IAF, Tab 6
at 198, the parties stipulated that the agency employee signed the letter at the Medical
Center Director’s be hest, ID at 15.
8
conclude that the disclosure was a contributing factor in the personnel action).
We therefore discern no error w ith the chief administrative judge’s conclusion
that the appellant proved that his whistleblowing disclosures were a contributing
factor in the agency’s decision to terminate him. ID at 15-16.
We agree with the chief administrative judge that the agency proved by clear and
convincing evidence that it would have terminated the appellant absent his
whistleblowing disclosures.
¶13 Because the appellant made out a prima facie case, the agency is given an
opportunity to prove by clear and convincing evidence tha t it would have
terminated him during his probationary period in the absence of the
whistleblowing disclosure s. 5 U.S.C. § 1221 (e)(1) -(2); Lu, 122 M.S.P.R. 335 ,
¶ 7. In determining whether the agency has met this burden, the Board will
consider the following factors: the strength of the agency’s evidence in support of
its action; the existence and strength of any motive to retaliate on the part of the
agency officials who were involved in the decision; and any evidence that the
agency takes similar actions against employees who are not whistleblowers but
who are otherwi se similarly situated. Carr v. Social Security Administration ,
185 F.3d 1318 , 1323 (Fed. Cir. 1999). When conducting an assessment of these
factors, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has
instructed the Board to “evaluate all the pertinent evidence in determining
whether an element of a claim or defense has been proven adequately.”
Whitmore v. Department of Labor , 680 F.3d 1353 , 1368 (Fed. Cir. 2012).8 For
8 Historically, the U.S. Court of Appeals for the Federal Circuit was the only route to
appeal a final decision of the MSPB . However, as a result of changes initiated by the
Whistleblower Protection Enhancement Act of 2012 (P ub. L. No. 112-199, 126 Stat.
1465 ), extended for three years ( All Circuit Review Extension Act, Pub. L.
No. 113-170, 128 Stat. 1894 ), and eventually made permanent ( All Circuit Review Act,
Pub. L. No. 115-195, 132 Stat. 1510 ), appellants may file petitions for judicial review
of MSPB decisions in whistleblower reprisal cases with any circuit court of appeals of
competent jurisdiction.
9
the following reasons, we agree with the chief administrative judge that the
agency satisfied this burden.
The agency’s evidence was strong.
¶14 In the initial bench decision , the chief administrative judge found that the
agency’s evidence was strong because the SRB unanimously recommended that
the appellant’s employment be terminated. ID at 24-25. We agree with that
conclusion .9 Moreover, we note that reports concerning deficiencies in the
appellant’s patient care began to surface at least by February 2011 —well before
the Medical Center Director learned in the June to August 2011 timeframe that
the appellant made the disclosures at issue. IAF, Tab 6 at 264, 331 -36, 341 -42,
364. By May 2011, the then Chief of Staff identified the appellant, among others,
in an email about providers who were causing patient safety concerns and advised
the Medical C enter Director and other agency officials that the agency should
“clos[e] the loop on [the appellant] prior to October,” when the appellant’s
probation was to end. AF -2, Tab 25 at 28; HT-2 at 360 (testimony of the former
chief of staff) .
¶15 Although we discuss below the appellant’s arguments regarding his theory
of retaliation, we address some of his concerns regarding the circumstances
surrounding the initiation of the SRB, the composition of its members, and the
evidence that was presented to it, because these issues relate to the strength of the
agency’s evidence. For example, we have considered the appellant’s assertion
that the SRB was “initiated unde r very suspicious circumstances. ” PFR File,
Tab 7 at 14. The chief administrative judge indicated that there was no evidence
of any procedural impropriety regarding how the SRB was convened or that the
9 The chief administrative judge noted in the initial bench decision that she did not have
the authority to examine or alter th e SRB’s recommendation, but she considered
evidence of procedural error or bias of any SRB members. ID at 18-19. The appellant
does not appear to challenge the chief administrative judge’s findings in this regard on
review and we see no reason to disturb them.
10
SRB was created to apply only to the appellant. ID at 18-19 (finding that “the
evidence was clear that the SRB was an established process used routine ly by the
VA”) ; IAF, Tab 6 at 396-403 (the agency’s Handbook describing probationary
period actions, including SRBs). The Associate Chief of Staff for Primary Care
submitted the request for the SRB on August 19, 2011, IAF, Tab 6 at 204, which
was after th e Medical Center Director learned that the appellant made
whistleblowing disclosures. However, there is no evidence that the Medical
Center Director informed the Associate Chief of Staff for Primary Care of the
disclosures; in fact, the Associate Chief of Staff for Primary Care testified that
when he initiated the SRB in August 2011, he was not “aware of any complaints
or concerns” that the appellant had raised regarding performance improvement or
the mismanagement of Federal funds by the VISN or its direc tor. HT -2 at 411
(testimony of the Associate Chief of Staff for Primary Care) .
¶16 We also are not persuaded that the SRB was tainted because of the
composition of its members. The chief administ rative judge found that one
member of the SRB was a primary c are physician, and another member, a doctor ,
had performed in a pr imary care setting; in any event, the chief administrative
judge concluded that there was no evidence that SRB members had to be from the
same discipline as the subject of an SRB review . ID at 22-23. The appellant
cites to no evidence on review that the chief administrative judge’s conclusion
was erroneous. There also does not appear to be any evidence of bias on the part
of any SRB member against the appellant. For instance, the Chair of the SRB
testified that he “met [the appellant] a few times in a social setting,” and “liked
[him] as a person.” HT -1 at 87-88 (testimony of the Chair of the SRB) . In
addition, the SRB member who also testified that he was a primary care physician
never met the appellant. HT -1 at 35-36 (testimony of the SRB member who was a
primary care physician) .
¶17 We have considered the appellant’s assertion that the SRB was provided
“fewer than 1%” of his patient files for review and that some of the files included
11
complaints about patient care from when he first began working at the agency in
2009 . PFR File, Tab 7 at 15-16. We are not persuaded that the information
provided to the SRB was improper. The chief administrative judge acknowledged
that the SRB only revi ewed a small portion of the appellant’s patient files, but she
explained that there was no evidence that the SRB’s review of a small percentage
of negative cases was improper or that a random sampling of cases or a different
percentage of cases was require d. ID at 22. Indeed, she noted that one SRB
member testified that an SRB necessarily involves a review of a small percentage
of cases. ID at 20; s ee HT-1 at 76 (testimony of the SRB member who was a
primary care physician explaining that it “would take years” to review all of a
physician’s patient files).
¶18 Next, t he appellant challenges the chief administrative judge’s analysis of
certain evidence. For instance, he asserts that the chief administrative judge’s
analysis was inconsistent with Whitmore because she would not speculate as to
why his past performance evaluations were rated satisfactory , but he received an
unsatisfactory evaluation after he made whistleblowing disclosures.10 PFR File,
Tab 7 at 9; ID at 22. Compare IAF, Tab 6 at 241-42; AF -2, Tab 25 at 51, with
IAF, Tab 6 at 239-40. We disagree. The initial bench decision reflects that the
chief administrative judge considered this evidence, inasmuch as she noted that
an earlier performance evaluation indicated that the appellant was “satisfa ctory”
considering that he was “new” to the agency. ID at 22; IAF, Tab 6 at 242. In
fact, the comments of that August 2010 evaluation stated that the appellant “still
needs to work hard on developing templates & program notes.” IAF, Tab 6
at 242. There fore, it appears that the chief administrative judge did not give the
earlier evaluation much weight, given the appellant’s short tenure at the agency.
Moreover, the appellant does not cite, and we are not aware of, any interpretation
10 The SRB was presented with information regarding the appellant’s earlier
evaluations. IAF, Tab 6 at 204.
12
of Whitmore that requires an administrative judge to speculate further about such
evidence.11 Thus, this argument is unavailing.12
¶19 The appellant also asserts that the chief administrative judge finding the
former Chief of Staff to be not credible was improper becaus e the chief
administrative judge “did not rely on any particular demeanor of the witnesses.”
PFR File, Tab 7 at 10. Thi s argument is unavailing. When , as here, the chief
administrative judge heard live testimony, her credibility determinations must be
deemed to be at least implicitly based on witness demeanor. Little v. Department
of Transportation , 112 M.S.P.R. 224 , ¶ 4 (20 09). Moreover, 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 appellant has not presented such
sound reasons.
¶20 In fact , we discern no error with the chief administrative judge’s credibility
determinations. The chief administrative judge found all of the witnesses “fully
credible ,” except for the former Chief of Staff, because his testimony was
“inconsistent with documents and other credible testimony ,” and he was “biased
against any nonmedical personnel having involvement with medical personnel.”
11 As a result of the all circuit review provisions of the Whistleblower Protection
Enhancement Act of 2012 and subsequent laws , we must also consider this issue with
the view that the appellant ultimately may seek review of this decision before any
appropriate court of appeal. See 5 U.S.C. § 7703 (b)(1)(B).
12 We also are not pers uaded that the discrepancy in his evaluations is analogous to
Whitmore , 680 F.3d at 1376 , in which the Federal Circuit found that Mr. Whitmore had
“decades of exceptional service” before he started making disclosures in 2005, which
“marked the beginning of his increasingly strained relationships with [agency] officials,
and how his disclosures paralleled his increasingly poor performance reviews.” By
contrast, the appellant’s evaluations, covering the time period of October 2009 through
June 2011, were sat isfactory, with comments as noted above, and his August 18, 2011
proficiency report was “unsatisfactory.”
13
ID at 16-17. It was appropriate for the chief administrative judge to make
credibili ty determinations based on, among other things, the contradiction of the
former chief of staff’s version of events by other evidence and/or the witness’ s
bias. Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458 (1987) ; ID at 17.
¶21 The appellant asserts that the former chief of staff was in the best position
to evaluate his performance because he completed some of the appellant’s rece nt
evaluations. PFR File, Tab 7 at 11-12. However, as noted above, the prior
evaluations were only “satisfactory” and do not appear to reflect the former chief
of staff’s concerns about the appellant’s performance as a physician. For
example, in an email dated May 19, 2011 (prior to the appellant’s protected
whistleblowing disclosure s) to the Medical Center Director, among other agency
officials, the former chief of staff wrote concerning employees , including the
appellant, who caused “[p]atient safe ty concerns,” emphasized that the
appellant’s probation ended in October 2011, and advised that the agency should
“clos[e] the loop” on the appellant “prior to October.” E.g., AF -2, Tab 25 at 28.
Accordingly, we discern no error with the chief administra tive judge’s credibility
determinations. Regarding the appellant’s assertion that the SRB was not given
his notes, PFR File, Tab 7 at 16, he does not explain on review what information
was contained in his notes or why his attorney, who appeared before th e SRB on
his behalf, did not provide his notes or a summary of the information contained
therein to the SRB .
¶22 In conclusion, one SRB member testified that the reason the SRB felt
confident in its decision to recommend that the appellant’s employment be
terminated was b ecause the information that the SRB reviewed documented
various categories of problems, including heart issues, medication issues, and
patient autonomy issues, which demonstrated that the appellant engaged in a
“consistent pattern of a lack of quality care.” HT -1 at 76 (testimony of the SRB
member who was a primary care physician) . The evidence supports the SRB’s
14
conclusion and unanimous recommendation , and we agree with the chief
administrative judge that the agency’s evidence was strong.
We modify the initial bench decision to clarify that the Medical Center
Director had some motive to retaliate against the appellant for his
whistleblowing disclosures .
¶23 In the initial bench decision , the chief administrative judge described the
Medical Center Director as being “agitated,” “irritated,” and “very upset” about
the appellant’s complaints regarding clinical care issues , but she cited his
testimony that the appellant’s union involvement did not influence his decision to
terminate the appellant’s employment . ID at 21, 23. She concluded that there
was “no evidence” of a retaliatory motive on the SRB members’ part when they
recommended termination or on the Medical Center Director’s part when he
adopted the SRB recommendation. ID at 25. We agree with the appellant , PFR
File, Tab 7 at 16-17, that the chief administrative judge’s analysis of this Carr
factor was inconsistent with Board precedent based on Whitmore , 680 F.3d
at 1370 , which found that “[t]hose responsible for the agency’s p erformance
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 employers.” See
also Robinson v. Department of Veterans Affairs , 923 F.3d 1004 , 1019 (Fed. Cir.
2019) (considering under the second Carr factor whether there was a professional
motive to retaliate) ; Wilson v. Department of Veterans Affairs , 2022 MSPB 7 ,
¶ 65 (addressing t he second Carr factor consistent with Whitmore to find that the
appellant’s disclosures generally put higher -level management officials in a
critical light by disclosing problems for which they were responsible ); Smith v.
Department of the Army , 2022 MSPB 4 , ¶¶ 28-29 (addressing the second Carr
factor consistent with Whitmore to find that the misconduct the appellant
disclosed was egregio us and generated negative publicity, thereby reflecting
poorly on the general institutional interests of the agency) . We therefore modify
15
the initial bench decision to find that the Medical Center Director’s strong ,
negative feelings about the appellant’s whistl eblowing disclosures constitute
some evidence of a motive to retaliate.13
¶24 The appellant contends that the chief administrative judge ignored his
theory of retaliation , namely that the agency fabricated perfor mance issues to
terminate him . PFR File, Tab 7 at 8-13. In this regard, the appellant asserts that
the agency “hand[ -]picked” the members of the SRB and the information
provided to the SRB, and then relied on the SRB’s decision to justify its decision
to terminate him. Id. at 12. The appellant does not assert that any SRB members
had a motive to retaliate against him; rather, he contends that the SRB was the
“unwitting conduit ” in the agency’s retaliation. Id. at 13.
¶25 The U.S. Supreme Court has adopted the term “cat’s paw” to describe a
theory explaining instances in which a particular management official, acting
because of improper animus, influences an agency official who is unaware of the
improper animus when impleme nting a personnel action. Dorney v. Department
of the Army , 117 M.S.P.R. 480 , ¶ 11 (2012) (citing Staub v. Proctor Hospital ,
562 U.S. 411 (2011)). We have considered the cat’s paw theory in this matter .
We are not persuaded that the Medical Center Director improperly infl uenced any
member of the SRB. Two SRB members testified, but neither of them indicated
that they were influenced by the Medical Center Director or any other agency
official or that they were instructed to make a particular recommendation . HT-1
at 76 (testimony of the SRB member who was a primary care physician that “[n] o
one in the room seemed to have an axe to grind [or] any personal issues ”), 101
(testimony of the Chair of the SRB stating that the outcome was “fair and
13 To the extent that the appellant contends that the Associate Chief of Staff for Primary
Care had a motive to retaliate against him or otherwise had knowledge that he was
named in one of the appellant’s disclosures, PFR File, Tab 7 at 16-17, there is no
evide nce to support this assertion, see supra ¶ 15. In the absence of any such evi dence,
we need not consider whether the Associate Chief of Staff for Primary Care improperly
influenced the SRB in any way . PFR File, Tab 7 at 13.
16
objective”) . We also have considered the circumstantial evidence of improper
influence, such as how the SRB was initiated, which members were selected, and
the evidence that was presented to the SRB. However, we are not persuaded that
there is evidence of a strong motive to retali ate on the part of the Medical Center
Director . Indeed, if the Medical Center Director was hand -picking the SRB
members, as the appellant suggests, it strains credulity that he would select the
Chair of the SRB because of his prior personal relationship with the appellant .
HT-1 at 87-88 (testimony of the Chair of the SRB) . Moreover, the record reflects
that various agency officials raised concerns about the appellant’s competence
months before he wrote the correspondence containing the whistleblowing
disclosures and before his authorship of this correspondence was even known to
the Medical Center Director . See, e.g. , IAF, Tab 6 at 253-54, 263 -64, 318, 331 ,
334-36, 341 -42, 364; AF -2, Tab 25 at 25-29.
¶26 Finally, we have considered the appellant’s assertion that the chief
administrative judge improperly applied the preponderant evidence standard when
she found that it was “reasonable” for the Medical Center Director to rely on the
unanimous SRB recommendation as justificat ion for the termination action. PFR
File, Tab 7 at 13-17; ID at 23-25. Clear and convincing evidence “is that measure
or degree of proof that produces in the mind of the trier of fact a firm belief as to
the allegations sought to be established.” 5 C.F.R. § 1209.4 (e). It is a higher
standard than preponder ant evidence, which 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 .”
Elder v. Department of the Air Force , 124 M.S.P.R. 12 , ¶ 42 (2016); 5 C.F.R.
§ 1201.4 (q). Although unclear, the appellant appears to be confusing the chief
administrative judge’s use of the term “reasonable” with the use of the
“reasonable person” standard in the definition of preponderant evidence as
described in 5 C.F.R. § 1201.4 (q). The chief administrative judge’s use of the
term “reas onable” in this regard d oes not—standing alone —persuad e us that she
17
improper ly applied the preponderant evidence standard in evaluating this Carr
factor . Thus, we find that this argument is without merit.
The agency proved that it took similar actions against employees who
were not whistleblowers but who were otherwise similarly situated.
¶27 In the initial bench decision , the chief administrative judge wrote that the
agency identified a number of physicians who went before an SRB who were not
whistleblowers. ID at 25. The chief administrative judge also noted that one
physician was terminated and another was reassigned based on the SRB’s
recommendation. Id. We have considered the appellant’s argument that two
nonwhistleblower physicians who were subject to an SRB ’s review committed
“egregious failures of patient care,” and, thus, they were not similarly s ituated to
him. PFR File, Tab 7 at 16-18. However, in Whitmore , 680 F.3d at 1373 , the
Federal Circuit advised that “the requisite degree of similarity between employees
cannot be construed so narrowly that the only evidence helpful to the inquiry is
completed disregarded.” Thus, the court held that comparators need not be
“identicall y situated,” but only “similarly situated.” Id. The fact that other
physicians who were called before an SRB may have committed more severe
failures of patient care than the appellant does not prevent them from being
simi larly situated to him. The agenc y’s Handbook states that an SRB is “limited
to situations where summary separation from Federal service may be justified,”
and it explains that the primary purpose of the SRB is “to obtain available facts
and determine whether the employee is fully qualifi ed and satisfactory .” IAF,
Tab 6 at 397, 399. Thus, there may be somewhat varying circumstances that lead
to the convening of an SRB.
¶28 We also have considered the appellant’s assertion that the chief
administrative judge impr operly excluded evidence of nonwhistleblowers who
were treated more favorably than him. PFR File, Tab 7 at 18-20 (the appellant’s
objection raised during the testimony of the Acting Chief of Staff ). We reviewed
this portion of the hearing transcript. There, the agency objected to the
18
appellant’s questions about the fairness of an SRB being convened for the
appellant when the agency had concerns about other physicians’ quality of care ,
and the chief administrative judge sustained the objections because there was no
evidence that the witness was aware of other physicians with patient care issues.
HT-1 at 128, 130 -31 (the appellant’s objections raised during the testimony of the
Acting Chief of Staff) . We discern no error with the chief administrative judge’s
decision to sustain the agency’s objections until a proper foundation was laid for
the witness to testify about quality of care concer ns involving other physicians.
5 C.F.R. § 1201.41 (b). Indeed, the appellant subsequently inquire d about the
witness’ s knowledge of specific physicians with whom the agency had quality of
care issues , and based on the witness’ s affirmative answer, asked if the witness
questioned why an SRB was convened for the appellant but not another physician.
HT-1 at 131-35 (testimony of the Acting Chief of Staff) .
Conclusion
¶29 Nothing in the whistleblower p rotection statutes prohibits an agency from
taking an action against an emp loyee about whom it h as performance and /or
conduct concerns prior to any agency official’s awareness of the employee’s
whistleblowing disclosures. Having considered the three Carr factors, and the
evidence and argument cited by the appellant on review, we agree with the chief
administrative judge that the agency proved by clear and convincing evidence that
it would have terminated the appellant during his probationary period absent his
whistleblowing disclosures . Therefore, we deny his request for correct ive action.
The initial bench decision , as supplemented by this Final Order, constitutes the
Board ’s final decision in this matter .
19
NOTICE OF APPEAL RIGHTS14
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 bel ow do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filin g time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicia l review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
14 14 Since the issuance of the initial decision in this matter, the Board may have
updated the notice of re view rights included in final decisions. As indicated in the
notice, the Board cannot advise which option is most appropriate in any matter.
20
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Ci rcuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Pe titioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit ou r website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any att orney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
21
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appo inted lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed thr ough the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receiv e
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
22
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.15 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appea ls
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’ s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Cir cuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
15 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
23
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | AHMAD_NAEEM_CH_1221_12_0462_W_2_FINAL_ORDER_1969382.pdf | 2022-10-17 | null | CH-1221 | NP |
4,020 | https://www.mspb.gov/decisions/nonprecedential/MANSFIELD_JEROME_PH_3330_15_0188_B_1_FINAL_ORDER_1968724.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JEROME MANSFIELD,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
PH-3330 -15-0188 -B-1
DATE: October 14, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jerome Mansfield , Mount Laurel, New Jersey, pro se.
Donald W. Taylor , Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL OR DER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA). Generally, we grant petitions such as this
one only when: the initia l decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during eithe r 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 f or review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 In this VEOA appeal, the appellant alleged that the agency violated his
veterans’ preference rights when it failed to select him for a V eterans Claim s
Examiner Trainee position. Mansfield v. Department of Veterans Affairs , MSPB
Docket No. PH -3330 -15-0188 -I-1, Initial Appeal File (IAF), Tab 1. He did not
request a hearing. Id. After considering the parties’ responses to several show
cause orders seeking information regarding the appellant’s claim and the agency’s
selection process, IAF, Tabs 3 -11, the administrative judge found jurisdiction
over the appeal and granted the appellant’s request for corrective a ction because
she found that the agency had failed to grant the appellant a five -point preference
based on his service in the United States Air Force from October 22, 2001,
through August 18, 2002, IAF, Tab 12, Initial Decision (ID); see IAF, Tab 4 at 3.
She ordered the agency to reconstruct the selection process , taking into account
the appellant’s five -point veterans’ preference. ID at 5.
¶3 In its petition for review of that decision, the agency insisted that any error
it committed was harmless . Mansfi eld v. Department of Veterans Affairs , MSPB
3
Docket No. PH -3330 -15-0188 -I-1, Petition for Review (PFR) File, Tab 1. The
agency explained that under such procedures, preference -eligible applicants do
not receive points, but instead are listed ahead or above those who are not eligible
for veterans’ preference within the same quality category to which they were
assigned based on the agency’s job -related assessment tools. Id. Because the
agency had sufficient candidates to choose from in the higher -ranked
best-qualified quality category, it did not reach the well -qualified quality
category into which it placed the appellant based on his self -assessment , and
therefore it did not harm him when it failed to place him at the top of the
well-qualified category . Id. The agency also asserted that the appellant had
failed to establish his pref erence eligibility and that his résumé did not show that
he held the requisite qualifications for the position. Id.
¶4 Because it was unclear from the record how the agency cond ucted the
selection process , especially considering the fact that numerous individuals who
had received equal or lower self -assessment scores as compared to the appellant
were nonetheless placed in the best -qualified category, the Board vacated the
initial decision and remanded the appeal to the regional office for further
adjudication . Mansfield v. Department of Veterans Affairs , MSPB Docket
No. PH-3330 -15-0188 -I-1, Remand Order (Mar. 1, 2016) ; PFR File, Tab 6 . On
remand, t he administrative judge issued acknowledgment and close of record
orders and the agency , in response, provided a single submission. Mansfield v.
Department of Veterans Affairs , MSPB Docket No. PH-3330 -15-0188 -B-1,
Remand File (RF), Tabs 1 -4. The appellant did not respond.
¶5 In her rem and initial decision, the administrative judge denied the
appellant’ s request for corrective action, finding that he failed to establish that
the agency violated his veteran s’ preference rights . RF, Tab 5 , Remand Initial
Decision (RID). In his petition f or review of the remand initial decision and in
his supplemental submissions , the appellant argues that the agency hired two
applicants with lower scores than his and he contends that the agency’s evidence
4
on the selection process was insufficient , in part because it was not sworn .
Remand Petition for Review File, Tabs 1, 3 -4. The agency did not respond to the
appellant’s petition for review.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 To be entitled to relief under VEOA, the appellant must prove by
preponderant evidence that the agency ’s selection violated one or more of his
statutory or regulatory veterans ’ preference rights. E.g., Dale v. Department of
Veterans Affairs , 102 M.S.P.R. 646 , ¶ 10 (2006). In a traditional competitive
examination, preference -eligible veterans have additional points added to their
passing scores. 5 U.S.C. § 3309 ; 5 C.F.R. § 337.101 (b). The names of applicants
are entered onto registers, or “lists o f eligibles,” in rank order, with preference
eligibles ranked ahead of others with the same rating. See 5 U.S.C. § 3313 ;
5 C.F.R. § 332.401 . The appointing authority must make a selection from the
highe st three eligibles on the list, 5 U.S.C. § 3318 (a), and must justify a decision
to pass over a preference eligible in ord er to se lect a nonpreference eligible,
5 U.S.C. § 3318 (c).
¶7 Under category rating, an examining agency defines two or more quality
categories (such as well -qualif ied and best qualified) ; candidate s are assessed and
those with similar proficiency are placed in the same category. Within each
quality category, the agency must list preference eligibles ahead of individuals
who are not preference eligibles. See 5 U.S.C. § 3319 (b). “For other than
scientific and professional positions a t GS –9 of the General Schedule ( equivalent
or higher), qualified preference -eligibles who have a compensable
service -connected disability of 10 percent or more shall be listed in the highest
quality category.” Id. An agency may not select a nonpreference eligible ahead
of a preference eligible in the same category unless it seeks and receives appr oval
for a pass over. Launer v. Department of the Air Force , 119 M.S.P.R. 252 , ¶ 7
(2013) (citing 5 U.S.C . § 3319 ). An agency may assig n numerical scores for
5
purposes of placing applicants in categories, but veterans ’ preference points are
not added to such scores. Launer , 119 M.S.P.R. 252 , ¶ 7; see 5 C.F.R.
§ 337.304 (b).
¶8 Here, w e agr ee with the administrative judge that the record reflects that the
agency used category rating procedures to fill the position at issue. RID at 3 ; RF,
Tab 3 at 1 -3. Further , the record reflects that even if the agency had properly
moved the appellant to the head of the well -qualified category in keeping with his
five-point veteran s’ preference , it would not have made a difference because all
the selectees came from the best -qualified category .2 Regarding the appellant’s
observation that two selectees had lower self -assessment scores than him, the
record indicates that those selectees were entitled to CP or CPS status,
respectively reflecting compensable service -connected disability ratings of either
10% to less than 30% (CP) or over 30% (CPS), entitling them to be listed in the
highest quality category, as opposed to the appellant’s five-point (TP) status,
which would have only moved him to the top of the second, well -qualified ,
category and would not have resulted in his selection for the posit ion at issue . RF
at 2-3; Launer , 119 M.S.P.R. 252 , ¶ 7.
¶9 Moreover, because the appellant was not in the best -qualified category from
which the agency selected its candidates , the agency’s apparent failure to afford
him five veterans’ preference points and move him to the head of the
well-qualified category would not have change d the result. Thus , the
administrative judge properly f ound that the appellant was not entitled to
corrective action . R ID at 7 ; see Jones v. Department of Health & Human
Services , 119 M.S.P.R. 355, ¶¶ 14-16 (denying corrective ac tion when any
2 Although the appellant’s résumé states that he is entitled to 10 veterans’ preference
points based on a compensable service -connected disability of at least 10% but less than
30% (CP), the record r eflects that he failed to submit any evidence in support of that
assertion, and he claims elsewhere in the record that he is instead entitled to 5 veterans’
preference points . RF, Tab 3 at 2, 4; IAF, Tab 1 at 3, Tabs 4, 7; see Launer ,
119 M.S.P.R. 252 , ¶ 7.
6
agency ’s failure to accord the appellant’s veterans’ preference did not result in
any harm because the vacancy at issue was canceled and, even if not canceled, the
appellant would not have been rat ed among the best qualified candidates), aff’d
per curiam , 544 F. App’x 976 (Fed. Cir. 2013) .
¶10 As for the appellant’s assertion that the agency’s evidence is unsworn, the
administrative judge instructed the parties that while sworn evidence is
potentially entitled to more weight, submissions “need not be in the form of an
affidavit, sworn statement or declaration made under penalty of perjury” to be
admissible. RF, Tab 4 at 2 (citing Scott v. Department of Justice , 69 M.S.P.R.
211, 228 (1995) ). Considering the entirety of the record, we concur with the
administrative judge ’s conclusions, and we find that t he appellant has not shown
error in the administrative judge’s weighing of the evidence . 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 & Human Services , 33 M.S.P.R. 357 , 359 (1987) (same).
¶11 Lastly, concerning the appellant’s q ualifications for the position , pursuant
to 5 U.S.C. § 3311 (2) and 5 C.F.R. § 302.302 (d), the Board is limited to assessing
whether an agency considered all of an appellant ’s “valuable experience” material
to the posi tion for which he applied. Miller v. Federal Deposit Insurance
Corporation , 121 M.S.P.R. 88 , ¶ 7 (2014) , aff’d , 818 F.3d 1361 (Fed. Cir. 2016) .
The appellant does not assert that the agency failed to consider any particular
portion of his qualifications and experience.
¶12 Accordingly, we affirm the initial decision.
7
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, t hen you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
9
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at th eir respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your rep resentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EE OC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
10
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2 302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision. 5
U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circ uit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants be fore the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWeb sites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MANSFIELD_JEROME_PH_3330_15_0188_B_1_FINAL_ORDER_1968724.pdf | 2022-10-14 | null | PH-3330 | NP |
4,021 | https://www.mspb.gov/decisions/nonprecedential/HAWKINS_DANIELLE_SF_0752_16_0796_I_1_FINAL_ORDER_1968755.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DANIELLE HAWKINS,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
SF-0752 -16-0796 -I-1
DATE: October 14, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ariel E. Solomon , Esquire and Paul G. Buchbinder , Esquire, Albany, New
York, for the appellant.
Camille D.S. Stroughter , Esquire, Oakland, California, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appeal without prejudice to refiling and deemed her affirmative
defenses withdrawn . For the reasons discussed below, we GRANT the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and a dministrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c).
2
appellant ’s petition for review an d AFFIRM the initial decision as MODIFIED to
find that the administrative judge abused her discretion in deeming the appellant ’s
affirmative defenses withdrawn . Because the time period to refile this appeal has
passed , we FORWARD the appeal to the Western Regional Office for docketing
and adjudication as a refiled appeal .
BACKGROUND
¶2 On September 26 , 2016, the appellant filed an appeal challenging the
agency ’s de cision to remove her . Initial Appeal File (IAF), Tab 1. Due to
scheduling issues, in a June 29, 2017 initial decision, the administrative judge
dismissed the appeal without prejudice. IAF, Tab 37, Initial Decision (ID) at 2.
She determined that the appeal would automatically be r efile d on August 21,
2017. Id.
¶3 As a separate matter, the a dminist rative judge stated, “after multiple
extensions, the appellant never submitted the required information to supp ort her
affirmative defenses. ” Id. The administrative judge noted that she had issued an
order for the appellant to show cau se why she should not impose sanctions, such
as deeming the affirmative defenses withdrawn, but the appellant never
responded. Id.; see IAF, Tab 36. Accordingly, the administrative judge deemed
the appellant ’s affirmative defenses withdrawn. ID at 2.
¶4 In her pet ition for review, the appellant asserts that the administrative judge
abused her discretion in deeming her affirmative defenses withdrawn. Petition
for Review (PFR) File, Tab 1 at 8-13. The appellant asserts that her primary
counsel, who was an e-filer, did not see the administrative judge ’s show cause
order because she was out of her office receiving medical treatment, and her
co-counsel, who was not an e-filer, did not receive the show cause order until
after the date that the response was due. Id. at 10. The ap pellant asserts that she
became aware of the filing deficiency on the date the initial decision was issued,
3
and that she filed a response 1 day later. Id. The agency has responded in
opposition to the petition. PFR File, Tab 7 .
ANALYSIS
¶5 An administrative judge has the authority to impose sanctions for a party’s
failure to follow the Board ’s regulations or failure to respond to the
administrative judge ’s orders. Robinson v. Department of Veterans Affairs ,
94 M.S.P.R. 509, ¶ 10 (2003); see Guzman v. Department of Veterans Affairs ,
114 M.S.P.R. 566, ¶ 12 (2010); see also 5 C.F.R. § 1201.43 (a), (c). The
administrative judge should not resort to the imposition of sanctions unless
neces sary to serve the ends of justice. Guzman , 114 M.S.P.R. 566 , ¶ 12. The
Board ordinarily will not disturb an administrative judge ’s determination to
impose a sanction unless it is shown that the administrative judge abused her
discretion or that her erroneous ruling adversely affected a party ’s substantive
rights. E.g., Johnson v. Department of the Treasury , 108 M.S.P.R. 592 , ¶ 17
(2008).
¶6 The Board ’s regulations allow an administrative judge to impose sanctions
for failure to comply with an order, failure to prosecute or defend an appeal, or
failure to m ake a timely filing. 5 C.F.R. § 1201.43 . When a party fails to comply
with an order, the administrative judge , in her sound discretion, ma y (1) draw an
inference in favor of the requesting party regarding the information sought;
(2) prohibit the party failing to comply with the order from introducing evidence
concerning the information sought, or from otherwise relying upon testimony
related to that information; (3) permit the requesting party to introduce secondary
evidence concerning the information sought; and (4) eliminate from consideration
any appropriate part of the pleadings or other submissions of the party that fails
to comply with the order. 5 C.F.R. § 1201.43 (a). The administrative judge ’s
authority to impose sanctions “covers, but is not limited to, ” the circumstances
specifically set forth in section 120 1.43. 5 C.F.R. § 1201.43 .
4
¶7 The administrative judge’s June 14, 2017 Order directing the appellant to
show why the Board should not impose sanctions pursuant to 5 C.F.R. § 1201.43
followed an April 11, 2017 Order directing the appellant to provide specific
information re garding her affirmative defenses . IAF, Tabs 20, 36. The appellant
responded to the April 11, 2017 Order with requests for extensions of time . IAF,
Tabs 24, 31. T he administrative judge granted the appellant’s requests, first
affording her until May 19, 2017 , and then affording her until June 13, 2017 , to
respond . IAF, Tab s 24-25, 31, 35 . The appellant ’s failure to provide a
substantive response to the administrative judge’s April 11, 2017 Order is the
basis of her decision to impose sanction s. IAF, Tab 36; ID at 2.
¶8 The appellant states in her petition for review that she submitted the
information req uested by the administrative judge the day after the initial
decision was issued.2 PFR File, Tab 1 at 10. She explains that, when the primary
attorney’s co -counsel assumed representation, he was not a registered e -filer in
this matter and did not actually receive a copy of the show cause order until after
the initial decision was issued. Considering the extenuating circumstances in this
case and the lack of any indication of abandonment or bad faith on the part of the
appellant, we f ind that the administrative judge abused her discretion in striking
the appellant ’s affirmative defenses. See Guzman , 114 M.S.P.R. 566, ¶¶ 9-17;
Simon v. Department of Commerce , 111 M.S.P.R. 381, ¶¶ 11-15 (2009).
¶9 Additionally, t he sanction imposed by the administrative judge is
problematic because the appellant clearly asserted her affirmative defenses, even
2 The regional office received the appellant’s submissions on June 20 and 27 , 2017,
after the Board’s initial decis ion was issued in this appeal. However , the submission s
were returned . IAF, Tab s 39 -40. No copy of the appellant ’s alleged sub mission in
response to the show cause order is in the record. On review , the appellant asks the
Board to consider her response to the show cause order . PFR File, Tab 1 at 6. Her
explanation for not timel y filing a response to the show cause order , i.e., that counsel
did not timely see the show cause order on the Board’s e -Appeal system , does not
establish good cause for her delayed filing, and we there fore deny her reques t that the
response be considered . See 5 C.F.R. § 1201.114 (f).
5
if in su mmary fashion, IAF, Tabs 1 , 16, and she never expressed any intent to
withdraw t hese defenses. Also, t he agency did not suggest the extreme sanction
that the administrative judge imposed. Further , the appellant ’s representative did
file motions for enlargement of time to file submissions regarding the appellant’s
affirmative defenses, IAF, Tabs 24, 31, and to suspend the case for a 30 -day
period, IAF, Tab 9.3
¶10 As noted, in the initial decision , the administrative judge dismissed the
appeal without prejudice and stated that the appeal would be automatically refile d
on August 21, 2017. ID at 2. As that date has passed, we forward this matter to
the Board’s Western Regional Office for continued adjudication.
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 o f available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fal l within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
3 The appellant has requested oral argument on the issues raised in her petition for
review. PFR File, Tab 1 at 8. We find that oral argument on these matters is not
needed, and we ther efore deny that request.
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 th e notice, the
Board cannot advise which option is most appropriate in any matter.
6
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained wi thin the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for inf ormation regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case .
7
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on u nlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
8
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial revi ew pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8 ) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Fe deral Circuit or any court
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 Feder al Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” whi ch is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.g ov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representati on in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/ Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HAWKINS_DANIELLE_SF_0752_16_0796_I_1_FINAL_ORDER_1968755.pdf | 2022-10-14 | null | SF-0752 | NP |
4,022 | https://www.mspb.gov/decisions/nonprecedential/MIDYETT_F_ALLAN_DA_3330_15_0309_I_1_FINAL_ORDER_1968826.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
F ALLAN MIDYETT,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DA-3330 -15-0309 -I-1
DATE: October 14, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carole D. Sexton , Esquire, Fayetteville, Arkansas, for the appellant.
Lynne Ravellette , Esquire, North Little Rock, Arkansas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his Veterans Employment Opportunities Act of 1998 appeal for lack of
jurisdiction . On petition for review, the appellant raises numerous challenges to
the initial decis ion in this case as well as to decisions in his various other appeals.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and adminis trative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required proc edures 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 We agree with the administrative judge that the appellant failed to
nonfrivolously allege that the agency violated his rights under a statute or
regulation relating to veterans’ preference. Consequently, we do not reach the
issue of whether the appellant proved that he exhausted his administrative
remedies with the Department of Labor. Therefore, we DENY the petition for
review. Except as expressly MODIFIED to VACATE the administrative judge’s
finding that the appellant exhausted his claims before the Department of Labor,
we AFFIRM the initial dec ision.
NOTICE OF APPEAL RIG HTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
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 not ice, the
Board cannot advise which option is most appropriate in any matter.
3
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situat ion and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claim s and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below t o decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule , an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is th e court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Fed eral Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any atto rney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your repres entative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex , national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact informa tion for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
5
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your repre sentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEO C via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protect ed activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited p ersonnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or a ny court
of appeals of competent jurisdiction.3 The court of appeals must receive your
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
6
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov /probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Co urt_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MIDYETT_F_ALLAN_DA_3330_15_0309_I_1_FINAL_ORDER_1968826.pdf | 2022-10-14 | null | DA-3330 | NP |
4,023 | https://www.mspb.gov/decisions/nonprecedential/JORDAN_CROWDER_BARBARA_ANN_AT_1221_16_0096_W_1_FINAL_ORDER_1968911.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BARBARA ANN JORDAN -
CROWDER,
Appellant,
v.
ENVIRONMENTAL PROTEC TION
AGENCY,
Agency.
DOCKET NUMBER
AT-1221 -16-0096 -W-1
DATE: October 14, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Barbara Ann Jordan -Crowder , Woodbridge, Virginia, pro se.
Alexandra Meighan , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Membe r
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her 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 dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
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 ava ilable that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review . Except as expressly MODIFIED by
this Fin al Order to VACATE the administrative judge’s alternative res judicata
finding, we AFFIRM the initial decision.
BACKGROUND
¶2 The agency suspended the appellant for 20 calendar days in August 2011,
and removed her in October 2011. Jordan v. Environmental P rotection Agency ,
MSPB Docket No. AT-0752 -11-0937 -I-1, Initial Decision at 2 (Mar. 19, 2012)
(0937 ID); Jordan v. Environmental Protection Agency , MSPB Docket
No. AT-0752 -12-0036 -I-1, Initial Decision at 2 (Mar. 19, 2012) (0036 ID). The
appellant filed Board appeals under chapter 75 challenging these actions. After
conducting a hearing, an administrative judge affirmed the suspension and
removal actions in two separate initial decisions. 0937 ID at 1, 15; 0036 ID at 2,
13. The administrative judge, in those decisions, considered the appellant’s
affirmative defenses of race, color, and age discrimination (in the suspension
action only), and reprisal for prior equal employment opportunity (EEO) activity
(in both the suspe nsion and removal actions), but determined that the appellant
failed to prove those claims. 0937 ID at 11-14; 0036 ID at 10-13. The appellant
3
filed petitions for review from those initial decisions, which the Board dismissed
as untimely filed. Jordan v. Environmental Protection Agency , MSPB Docket
No. AT-0752 -11-0937 -I-1, Final Order at 1-2, 4 (Sept. 22, 2015) ; Jordan v.
Environmental Protection Agency , MSPB Docket No. AT-0752 -12-0036 -I-1,
Final Order at 1-2, 5 (Sept. 22, 2015) . Neither party sought fur ther review of the
Board’s decisions, and they are now final. 5 C.F.R. § 1201.113 (b).
¶3 On October 23, 2015, t he appellant filed this IRA appeal , again challenging
her 20 -day suspension and rem oval, as well as a November 2010 1 -day
suspension. Initial Appeal File (IAF), Tab 1 at 4-6. She argued that these actions
were based upon race, color, sex, national origin, age, religion, and disability
discrimination . Id. She first filed a com plaint with the Office of Special Counsel
(OSC), which closed its file after determining that it did not have authority to
investigate her claims, which were EEO claims arising under 5 U.S.C.
§ 2302 (b)(1) .2 Id. at 449.
¶4 The administrative judge issued an order directing the appellant to file
evidence and argument proving that her appeal was within the Board’s
jurisdiction . IAF, Tab 2. She did not respond. The agency filed a motion to
dismiss for lack of jurisdiction . IAF, Tab 6 at 5-6. The agency, in its motion,
also argued that the appellant’s claims were barred by the doctrine of res judicata
because she was seeking to re -raise claims that she already litigated, or could
have litigated, in her prior chapter 75 Board appeals of her 20 -day suspension and
removal . Id. at 6-7. The appellant did not respond to the agency’s motion.
¶5 Because the administrative judge found no factual dispute bearing on the
issue of jurisdiction, he did not hold the appellant’s requested hearing . IAF,
Tab 1 at 2, Tab 7, Initial Decision (ID) at 1. The administrative judge issued an
initial decision finding that the appellant failed to nonfrivolously allege that she
2 The agency issued a final agency decision on the appellant’s EEO discrimination
complaint that she filed challenging the 1 -day and 20 -day suspensions. IAF, Tab 1,
Attachments; Petition for Review ( PFR ) File , Tab 1 at 29-34.
4
made a disclosure or engaged in activity protec ted under the Whistleblower
Enhancement Protection Act of 2012 (WPEA) . ID at 3-5. Accordingly, he
dismissed the appeal for lack of jurisdiction. ID at 5. The administrative judge
also noted that, in the alternative, the appeal could be dismissed under the
doctrine of res judicata, as the appellant previously appealed her 20 -day
suspension and removal from the agency and raised affirmative defenses of “race,
color, age discri mination, and reprisal .” ID at 5 n.7 (emphasis added) .
¶6 The appellant filed a timely petition for review. Petition for Review (PFR)
File, Tab 1. The agency filed a response , and the appellant replied. PFR File,
Tabs 3-4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 On review , the appellant challenges the merits of her removal and other
agency actions, including the two suspensions she received prior to her removal ,
and she complains about the processing of her prior EEO complaint and Board
appeals . PFR File, Tabs 1, 3.
¶8 In c ases like this one, wherein the material events occurred before the
December 27, 2012 effective date of the WPEA, the Board applies its pre -WPEA
jurisdictional standards.3 Scoggins v. Department of the Army , 123 M.S.P.R. 592,
¶¶ 7-8 (2016). Under pre -WPEA standards, the Board has jurisdiction over an
IRA appeal if the appellant has exhausted h er administrative remedies befor e
3 Although the appellant filed her IRA appeal after the effective date of the WPEA, all
of her alleged protected disclosures and personnel actions occurred prior to 2012. In
instructing the appellant regarding her jurisdictional burden , the administrative judge
properly provided the pre -WPEA standards. IAF, Tab 2. However, in the initial
decision, he also set forth the Board’s expanded jurisdiction under the WPEA. ID
at 2-3. Because this error was not prejudicial to the appellant’s substantive rights, it
provides no basis for reversing the initial decision . Panter v. Department of the
Air Force , 22 M.S.P.R. 281 , 282 (1984).
5
OSC and makes nonfrivolous allegations4 of the following: (1) she engaged in
whistleblowing activity by making a protected disclosure; and (2) the disclosure
was a co ntributing factor in the agency’ s decision to take or fail to take a
personnel action . Id., ¶ 8. As applicable here, a protected disclosure is a
disclosure of information that an appellant reasonably believes evidences a
violation of any law, rule, or regulation, gross mismanagement, a gross waste of
funds, an abuse of authority, or a subs tantial and specific danger to public health
or safety . 5 U.S.C. § 2302 (b)(8)(A)(2011); Scoggins , 123 M.S.P.R. 592 , ¶ 11.
¶9 Here, it is undisputed that the appellant exhausted her administrative
remedies with OSC. PFR File, Tab 1 at 14-15; IAF, Tab 1 at 449. However, as
the administrative judge correctly found, the appellant failed to nonfrivolously
allege that she made a protected disclosure. Specifically, the appellant failed to
identify 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 . ID at 3-5. She claimed below that she was retaliated
against based upon her race, color, sex, national origi n, age, religion, and
disability . ID at 3. However, the Board has long held and recently reiterated that
an allegation of discriminatory treatment by the agency in violation of Title VII
of the Civil Rights Act of 1964 does not constitute a protected dis closure under
5 U.S.C. § 2302 (b)(8) . Edwards v. Department of Labor , 2022 MSPB 9 , ¶ 10;
Padilla v. Department of the Air Force , 55 M.S.P.R. 540 , 542 -43 (1992); see also
Serrao v. Merit Systems Protection Boar d, 95 F.3d 1569 , 1575 (Fed. Cir. 1996);
Spruill v. Merit Systems Protection Board , 978 F.2d 679 , 690 -92 (Fed. Cir.
1992) .5 To the extent the appellant alleged a possible violation of 5 U.S.C.
4 Nonfrivolous allegations of Board jurisdiction are allegations of fact which, if proven,
could establish a prima facie case that the Board has jurisdiction over the matter at
issue. Levy v. Department of Homeland Security , 109 M.S.P.R. 444 , ¶ 12 (2008).
5 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on this issue. However, as a result of changes initiated by the
Whistleblower Protection Enhancement Act of 2012 (P ub. L. No. 112-199, 126 Stat.
6
§ 2302 (b)(1), OSC’s June 29, 2015 closeout letter explicitly advised her that it
defers EEO claims “to the dispute resolution procedures established by the
agencies and the Equal Employment Opportunity Commission to avo id
duplication.” IAF, Tab 1 at 449.
¶10 In addition, p rior to t he enactment of the WPEA, 5 U.S.C. § 2302 (b)(9)
made it a prohibited personnel practice to retaliate against an employee or
applicant for employment “because of the exercise of any appeal, complain t, or
grievance right granted by any law, rule, or regulation.” Wheeler v. Department
of Veterans Affairs , 88 M.S.P.R. 236 , ¶ 9 (2001); Williams v. Department of
Defense , 46 M.S.P.R. 549 , 551 (1991). Reprisal in violation of
section 2302(b)(9) was viewed as “ ‘reprisal based on exercising a right to
complain.’ ” Serrao , 95 F.3d at 1575 (quoting Spruill , 978 F.2d at 690). Claims
of a prohibited personnel practice, such as reprisal under section 2302(b)(9),
did not serve as an independent basis for a finding of Bo ard jurisdiction over an
IRA appeal. Flores v. Department of the Army , 98 M.S.P.R. 427 , ¶ 9 (2005); see
Serrao , 95 F.3d at 1575 . In interpreting the pre -WPEA version of 5 U.S.C.
§ 2302 (b)(9), the Board specifically held that a claim of reprisal for exercising a
right to complain in certain administrative proceedings, such as Board appellate
proceedings, the EEO complaint process, grievance proceedings, and unfair labor
practice proceedings, was not a basis for a finding of Board jurisdiction.
Coffer v. Department of the Navy , 50 M.S.P.R. 54, 56-57 (1991) (filing an unfair
labor practice charge/complaint); Ruffin v. Department of the Army , 48 M.S.P.R.
74, 78 (1991) (filing a Board appeal ); Fisher v. Department of Defense ,
47 M.S.P.R. 585 , 587 -88 (1991) (filing a grievance); Williams , 46 M.S.P.R.
at 553 (filing an EEO complaint). Based on these decisions, the appellant would
1465 ), extended for three years ( All Circuit Review Extension Act, Pub. L.
No. 113-170, 128 Stat. 1894 ), and eventually made permanent ( All Circuit Review Act,
Pub. L. No. 115-195, 132 Stat. 1510 ), we must consider this issue with the view that the
appellant ultimately may seek review of this decision before any circuit court of appeals
of competent jurisdiction. See 5 U.S.C. § 7703 (b)(1)(B).
7
have no right to further protection or redress as a whistleblower due to her having
engaged in prior E EO activity and/or her having filed a grievance contesting the
agency’s alleged decision to deny her request for leave under the Family and
Medical Leave Act of 1993 (FMLA).6 IAF, Tab 1; PFR File, Tab 1.
¶11 Furthermore, even though this appeal is not cover ed by the WPEA, we note
that the WPEA provides for Board jurisdi ction in an IRA appeal over claims of
reprisal for testifying or lawfully assisting any individual exercising an appeal,
grievance, or complaint right, reprisal for cooperating with or disclos ing
information to an Inspector General or OSC, or reprisal for refusing to obey an
order that would require a violation of law. 5 U.S.C. § 2302 (b)(9)(B), (C), and
(D) (2016) ; 5 U.S.C. § 1221 (e)(1).7 The Board lacks jurisdiction over reprisal for
a disclosure made in the context of an EEO complaint unless the employee sought
to remedy an alleged violation of section 2302(b)(8) within the EEO process.
5 U.S.C. § 1221 (a); 5 U.S.C. § 2302 (b)(9)(A); Mudd v. Department of Veterans
Affairs , 120 M.S.P.R. 365 , ¶¶ 6-7 (2013) (discussing coverage under the WPEA
for allegations raised in the context of an appeal, complaint, or grievance) ; see
Young v. Merit Systems Protection Board , 961 F.3d 1323 , 1329 (Fed. Cir. 2020) .
Because the appellant did not show or allege that she was seeking to remedy such
a violation in h er EEO complaint , under the WPEA, her EEO complaint does not
meet the criteria for IRA jurisdiction before the MSPB .
6 The appellant mentioned in her appeal and on review, by way of background, that she
had filed a formal grievance regarding the denial of FMLA leave, IAF, Tab 1,
Exhibit F; PFR File, Tab 1 at 22, 37, but she never claimed that the agency retaliated
against her for this activity. Even if she had, we would find that she failed to establish
Board jurisdiction over her IRA appeal on the basis of reprisal for filing a grievance
based on the same reasoning we conclude herein that she did not establish IRA
jurisdiction based on her possible EEO reprisal claim.
7 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
8
¶12 Accordingly, we find no basis upon which to disturb the administrative
judge’s determination that the Boar d lacks jurisd iction over the appellant’s
IRA appeal.8
NOTICE OF APPEAL RIG HTS9
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and t he appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice 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.
8 In light of our disposition here, we vacate the administrative judge’s finding that the
appeal could alternatively be dismissed under the doctrine of res judicata. ID at 5 n.1.
9 Since the issuance of th e initial decision in this matter, the Board may 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
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calenda r days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation f or an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 cl aimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discriminatio n
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
10
representative in this case, and your representative receiv es this decision before
you do, then you must file with the district court no later 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 orig in, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
11
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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) ot her than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.10 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
10 The original statutory provision t hat provided for judicial review of certain
whistleblower claims by any court of 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 are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | JORDAN_CROWDER_BARBARA_ANN_AT_1221_16_0096_W_1_FINAL_ORDER_1968911.pdf | 2022-10-14 | null | AT-1221 | NP |
4,024 | https://www.mspb.gov/decisions/nonprecedential/RICHARDSON_ROBBIE_L_AT_0752_16_0583_I_1_FINAL_ORDER_1968927.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROBBIE L. RICHARDSON ,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-0752 -16-0583 -I-1
DATE: October 14, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robbie L. Richardson , Fayetteville , North Carolina , pro se.
Barbara S. Patch , Esquire, St. Petersburg , Florida, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her constructive removal appeal for lack of jurisdiction because she
failed to nonfrivolously allege that her decision to resign was involuntary due to
improper agency action and, thus, tantamount to an appealable removal action.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
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 resu lting 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 appellant was employed by the agency as a GS -06 Clinical Dietetic
Technician. Initial Appeal File (IAF), Tab 1 at 1. During her employment, the
appellant was accepted to a Master’s of Social Work (MSW) program at the
University of New England.2 Id. at 10 . To complete the MSW program, the
appellant was required to participate in a full -time internship , which she
scheduled for May 4 through September 4, 2015. IAF, Tab 10 at 91, 107. On
April 7, 2015, the appellant submitted a request to cha nge her work schedule from
full-time to part -time so that she could complete her internship hours . Id. at 107.
The agency denied the appellant’s request , stating that it did not meet the
department’s needs. Id. at 104-06. The appellant then requested leave without
pay for the same time period, id. at 102 -03, which the agenc y also denied, stating
that it would cause the agency hardship , id. at 101 -02.
2 There appears to be no dispute that the appellant’s Clinical Dietetic Technician
position did not require a n MSW degree. IAF, Tab 11 at 6.
3
¶3 Believing that the agency’s denials to change her schedule constituted race
and age discrimination, the appellant contacted an equa l employment o pportunity
counsel or on May 1, 2015 , for informal counsel ing. Id. at 30 -31. Because h er
internship was set to begin, however, the appellant took 4 weeks of annual leave.
IAF, Tab 5 at 2. On June 1, 2015, the appellant submitted a notice of resignation
stating that her last day of employment would be June 2, 2015. IAF, Tab 10
at 100. The resignation was effective June 3, 2015. Id. at 99. On July 24, 2015,
the appellant filed a formal discrimination complaint against the agency , id. at 26,
arguing that it approved sch edule changes for several white, younger employees
and employees returning after maternity leave , id. at 35, but denied her own
requests , id. at 26 . On April 28, 2016, the agency issued a Final Agency Decision
finding no di scrimination. Id. at 29 -41.
¶4 The appellant filed an appeal with the Board, alleging that her resignation
was involuntary and that the agency denying her scheduling change request was
based on discrimination. IAF, Tab 1 at 2 . On July 22, 2016, the administrative
judge issued an initial decision dismissing the appeal without holding a hearing
for lack of jurisdiction because the appellant failed to nonfrivolously allege facts
that would support a finding that her resignation was coe rced or otherwise
involuntary. IAF, Tab 11, Initial Decision ( ID) at 6. The appellant has filed a
petition for review renewing her argument that her resignation was involuntary.
Petition f or Review (PFR) File, Tab 1 at 4 -5. In response, t he agen cy argues that
the administrative judge properly dismissed the appeal for lack o f juri sdiction.
PFR File, Tab 3 at 5-6.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 The appellant has the burden of proving by preponderant evidence that the
Board has jurisdiction ov er her appeal. 5 C.F.R. § 1201.56 (b)(2)(i)(A). An
employee -initiated action, such as resignation , is presumed to be voluntary and,
thus, outside the Board’s jurisdiction. Vitale v. Dep artment of Veterans Affairs ,
4
107 M.S.P.R. 501 , ¶ 17 (2007). An involuntary resignation , however, is
equivalent to a forced removal and, therefore, is wi thin the Board’s jurisdiction.
Garcia v. Department of Homeland Security , 437 F.3d 1322 , 1328 (Fed. Cir.
2006) (en banc) . If an appellant presents nonfrivolous allegations of Board
jurisdiction, i.e., allegations of fact that, if proven, could establish the Board’s
jurisdiction, then she is entitled to a hearing at which she must prove jurisdiction
by a preponderance of the evidence. Id. at 1344; 5 C.F.R. § 1201.4 (s).
¶6 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 coercio n, the app ellant must a lso show that the agency effectively
imposed the terms of her resignation, that she had no real istic alternative but to
resign , and that her 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 oper ated on the employee’s decision -making process that
deprived her of freedom of choice. Id.
¶7 Here , the appellant contends that her working conditions were so intolerable
that s he had no choice but to resign . IAF, Tab 5 at 1 -3. In cases such as this, the
Board will find an action involuntary only if the employee demonstrates that the
employer engaged in a course of action that made working conditions so difficult
or unpleasant that a reasonable person in that employee’s position would have felt
compelled to resign . Vitale , 107 M.S.P.R. 501 , ¶ 20. In makin g this
determination , 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
Admin istration , 88 M.S.P.R. 525 , ¶ 6 (2001). Thus, evidence of discrimination
ultimately goes to the question of coercion. Id.
¶8 Regarding the question of voluntariness, the appellant asserts that the
agency’s denial of her schedule change request deprived her of her freedom of
5
choice. PFR File, Tab 1 at 4-5. T he administrative judge addressed this
argument, finding the appellant voluntarily chose to undertake the internship and
elected the MSW program over her job. ID at 5-6. We agree that the appellant
has failed to nonfrivolously allege that any improper actions by the agency
coerced her decision, which was grounded in her voluntary choice to pursue the
MSW. Id. Moreover, the appellant has not alleged that the agency imposed the
terms of her resignation . ID at 5. To the contrary, the record suggests that the
appellant contemplated resigning well before she submitted her for mal
notification , IAF, Tab 10 at 94-95, and she chose her own resignation date,
id. at 100.
¶9 Further, the appellant acknowledges that the alternativ e to resigning was to
work full -time . PFR File, Tab 1 at 4 -5. Nonetheless, she has failed to
nonfrivolously allege that any improper agency actions prevented her from
continuing to work. ID at 6. We find that her allegations, if proven, could only
establish her own election to forgo her employment so she would not have to
suspend, even temporari ly, her efforts to attain an MSW. The administrative
judge stated, and we agree, that “the appellant’s decision to resign in order to
pursue her educational and career goals was, therefore, the quintessential choice
between two unpleasant alternatives.” Id.; see Lawson v. U.S. Postal Service ,
68 M.S.P.R. 345 , 350 (1995) . Furthermore , we find that the appellant was not
subjected to an y conditions so difficult or unpleasant that a reasonable person
woul d have felt compelled to resign . Searcy v. Department of Commerce ,
114 M.S.P.R. 281 , ¶ 13 (2010) (finding that the appellant’s allegations, which
included a contention about the denial of his leave requ est, did not evince
working conditions so intolerable that would have compelled a reasonable person
to resign) .
¶10 The appellant also claims on review that the administrative judge failed to
consider a June 26, 2015 mediation related to her discrimination c laim . PFR File,
Tab 1 at 3. We find that the administrative judge was not required to consider the
6
mediation because it occurred after the appellant’s resignation and could not have
influenced her decision to resign . See Miller v. Department of Defense ,
85 M.S.P.R. 310 , ¶ 23 (2000) ( stating that an administrative judge’s failure to
address in the initial decision facts that occurred after the appellant’s resignation
was not an error because it could not have contributed to alleged intolerable
working conditions) .
¶11 The appellant also argues that the administrative judge failed to consider
her discrimination claims . PFR File, Tab 1 at 1-2, 4-5. The administrative judge
correctly determined that the Board does not have jurisdiction over these claims .
ID at 6 n.2; see Garcia , 437 F.3d at 13 24-35. As stated above, t he Board will
consider such claims only as they relate to the quest ion of voluntariness. Pickens ,
88 M.S.P.R. 525 , ¶ 6 . As relevant to the jurisdictional issue, the appellant asserts
that the agen cy denying her scheduling change requests was motivated by
unlawful discrimination. E.g., IAF, Tab 1 at 2, 10 ; PFR File, Tab 1 at 4 -5. We
find that n one of the appellant’s discrimination claims, even if proven , could
change the basic fact that she could have continued to stay and perform in her
position. Further , the appellant had already begun the process of addressing the
alleged discrimination before she resigned and could have waited for the outcome
of her complaint to determine if resignation was necessary. See Axsom
v. Department of Veterans Affairs , 110 M.S.P.R. 605 , ¶ 17 (2009). As such, w e
find that the appellant has failed to nonfrivolously allege that any discrimination
on the part of the agency rendered her resignation involuntary.3
3 On May 17, 2018, the agency filed a motion for leave to submit a new document not
previously available despite its due diligence. PFR File, Tab 5. On May 25, 2018, the
Board granted the motion, PFR File, Tab 7, and the agency subsequently submitted an
Equal Employment Opportunity Commission (EEOC) decision regarding the appellant’s
discrimination claims finding that the appellant failed to prove that the agency
discriminated against her, PFR File, Tab 8 at 5 -8. We have considered this evidence,
and we f ind that it does not change the outcome of our decision. At most, the EEOC
decision reaffirms our conclusion that the appellant failed to show that any alleged or
perceived discrimination had an effect on the voluntariness of her resignation.
7
¶12 Based on the foregoing, we find that the appellant has failed to
nonfrivolously allege that her decision t o resign was involuntary. Accordingly ,
we deny the appellant’s petition for review and affirm the initial decision’s
dismissal of this appeal for lack of jurisdiction.
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for you r situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to yo ur claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of revi ew
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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 th e issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, t hen you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
9
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
10
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Feder al
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5 The original statu tory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allo ws appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Ac t is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respe ctive websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | RICHARDSON_ROBBIE_L_AT_0752_16_0583_I_1_FINAL_ORDER_1968927.pdf | 2022-10-14 | null | AT-0752 | NP |
4,025 | https://www.mspb.gov/decisions/nonprecedential/MELTON_DARLENE_PH_3443_21_0369_I_1_FINAL_ORDER_1968951.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DARLENE MELTON,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.
DOCKET NUMBER
PH-3443 -21-0369 -I-1
DATE: October 14, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Darlene Melton , Elkins Park, Pennsylvania, pro se.
Peter Colonna Romano , Esquire, Philadelphia, Pennsylvania, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal challenging her reassignment without a reduction in grade or
pay for lack of jurisdiction. 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the following circumstances: the initial decision contains erro neous 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 appe al or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in thi s appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 On review, the appellant asserts that , although her reassignment did not
result in immediate loss of grade or pay, she may suffer potential future monetary
harm because the position she was reassigned from is a “stepping stone” to higher
paying positions. Petition for Review File, Tab 1 at 3. The Board lacks
jurisdiction over reassignments that do not constitute a reduction in grade or pay,
even if a reassignment reduces the employee’s status, duties, or responsibilities.
Artmann v. Department of the Interior , 926 F.2d 1120 , 1122 (Fed. Ci r. 1991). A
reduction in pay must be ascertainable at the time of the personnel action without
reference to anticipated future developments. McEnery v. Merit Systems
Protection Board , 963 F.2d 1512 , 1514 -15 (Fed. Cir. 1992). Accordingly, the
Board lack s jurisdiction over this appeal. W e deny the petition for review and
affirm the initial decision.
3
NOTICE OF APPEAL RIG HTS2
You may obtain revi ew of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situatio n and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is t he court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Fe deral Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any att orney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is ap pealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriat e U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decisio n before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabl ing
condition, you may be entitled to representation by a court -appointed lawyer and
5
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your rep resentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EE OC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C . § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2 302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your pe tition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circ uit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MELTON_DARLENE_PH_3443_21_0369_I_1_FINAL_ORDER_1968951.pdf | 2022-10-14 | null | PH-3443 | NP |
4,026 | https://www.mspb.gov/decisions/nonprecedential/MIDYETT_F_ALLAN_DA_4324_15_0569_I_2_FINAL_ORDER_1968956.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
F. ALLAN MIDYETT,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DA-4324 -15-0569 -I-2
DATE: October 14, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
F. Allan Midyett , Fayettevill e, Arkansas, pro se.
LaTasha C. Clark and John Michael Coleman , Jackson, Mississippi, for the
agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of th e initial decision, which
dismissed without pre judice his appeal under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA). Generally, we
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders hav e 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 cont ributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
grant petitions such as this one only in the following circumstances: the initial
decisio n contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the cou rse of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite t he petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering th e filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
¶2 On June 26, 2017, the administrative judge issued an initial decision that
dismissed this appeal without prejudice, subject to refiling no later than
October 2, 2017, to allow the appellant a reasonable period of time to obtain
another representative. Midyett v. Department of Veterans Affairs , MSPB Docket
No. DA-4324-15-0569 -I-2, Appeal File (I -2 AF), Tab 55, Initial Decision (ID)
at 2. The record re flects that, prior to issuing the initial decision, the
administrative judge issued an order excluding the appellant’s attorney from all
further proceedings in the appeal due to her unprofessional behavior during
settlement discussions on the second day of the hearing. I -2 AF, Tab 54.
According to the administrative judge, the appellant’s attorney became physically
unable to control her anger, and pointed her finger and shook it within inches of
the agency attorney’s face, causing the agency attorney to b ack away abruptly.
Id.
¶3 On July 7 , 2017 , prior to the deadline for refiling his appeal on October 2,
2017, the appellant filed a petition for review. Petition for Review (PFR) File,
3
Tab 1. The agency has opposed the appellant’s petition, and the appella nt has
filed a reply, PFR File, Tabs 3 -4.2
¶4 We find that the appellant’s assertions on review fail to demonstrate that the
administrative judge abus ed her discretion in dismissing the appeal without
prejudice. An administrative judge has wide discretion to dismiss an appeal
without prejudice in the interests of fairness, due process, and administrative
efficiency, and may order such a dismissal at the request of one or both parties, or
to avoid a lengthy or indefinite continuance. Thomas v. Department of t he
Treasury , 115 M.S.P.R. 224 , ¶ 7 (2010). Further, t he Board has found it
appropriate to dismiss an appeal without prejudice whil e an appellant seeks
representation. See, e.g ., Cloonan v. U.S. Postal Service , 70 M.S.P.R. 226 ,
227-28 (1996). Thus, the reco rd supports the administrative judge’s reason for
dismissing the appeal without prejudice to allow the appellant to obtain new
representation.
¶5 On review, the appellant also challenges the administrative judge’s ruling
excluding his attorney. He contends t hat his attorney, who is also his wife,
should be reinstated because she is the best qualified to represent him, she has
represented him since 2011, and she is uniquely familiar with the many thousands
of pages of documents relevant to the appeal. PFR Fil e, Tab 1 at 3. He also
appears to assert that his attorney’s behavior during the settlement discussions
was influenced by the fact that she was undergoing treatment for a serious
2 The agency has filed a motion to strike the appellant’s repl y based on its erroneous
belief that, absent a showing of go od cause, the Board does not consider pleadings by
an appellant subsequent to a petition for review. PFR File, Tab 5. The agency’s motion
is denied because the Board’ s regulations allow for a reply to a re sponse to a petition
for review. 5 C.F.R. § 1201.114 (a)(4). However, such a reply must be “limited to the
factual and legal issues raised by another party in the response to the petition for
review.” Id. Accordingly, we have not c onsidered the appellant’s arguments in his
reply to the extent they fail to respond to the agency’s arguments concerning the
administrative judge’s exclusion of the appellant’s attorney and dismissal of the appeal
without prejudice. In light of our dispos ition of the agency’s motion, the appellant’s
response to the agency’s motion, PFR File, Tab 6, is moot.
4
medical condition and, during the hearing, was experiencing symptoms of seve re
pain, nausea, vomiting, and hand shaking. Id. at 5-6. Finally, he appears to argue
that he cannot afford to hire an attorney, his wife’s request for assistance from the
Arkansas Bar Association Lawyer Assistance Program was denied, and if forced
to re present himself, he would experience stress that would exacerbate his health
conditions. Id. at 7-9.
¶6 The record reflects that there is a pending motion to reopen the appeal, I -2
AF, Tab 46, as well as a pending motion for a decision on the written record in
which the appellant sets forth these same arguments, I -2 AF, Tab 57. The
administrative judge has indicated that she will consider all outstanding motions
when the appeal is refiled. I -2 AF, Tab 54 at 2 n.1, Tab 58. We find that the
issues of whether , and in what context, the appellant’s attorney should be allowed
to participate in the proceeding, and/or whether the hearing should be reconvened
are most appropriately addressed in the first instance by the administrative judge.
The administrative judg e has broad discretion to control the proceedings before
her. See Fritz v. Department of Health & Human Services , 87 M.S.P.R. 287 , ¶ 15
(2000); 5 C.F.R. § 1201.41 (b); see also Ryan v. Department of the Air Force ,
117 M.S.P.R. 362 , ¶ 5 (2012) ( finding that the Board ordinarily will not reverse
an administrative judge’ s rulings regulating the proceedings absent an abuse of
discretion); Pecard v. Department of Agriculture , 115 M.S.P.R. 31 , ¶ 15 (2010)
(observing that the abuse of discretion is a very high standard and allows for
great deference).
¶7 On review, the appellant also contends that the administrative judge erred in
failing to continue the hearing after his attorney was nauseous and became
suddenly ill during the hearing as a result of treatment for her serious medical
condition. PFR File, Tab 1 at 6-7. However, t he record does not reflect that the
appellant ever requested to continue the hearing. The appellant’ s remaining
arguments on review are essentially an attempt to reach the merits of the appeal,
which are irrelevant to the issue here of whether th e adminis trative judge abused
5
her discretion in dismissing the appeal without prejudice to refiling. See Gingery
v. Department of the Treasury , 111 M.S.P.R. 134 , ¶ 11 (2009). When an appeal
is dismissed without prejudice to refiling, the Board will not consider arguments
raised on review concerning matters that should be considered by the
administrative judge once the appeal has been refi led. See, e.g. , Lewis v.
Department of the Air Force , 69 M.S.P.R. 40 , 44 (1995).
¶8 As noted, the appellant filed his peti tion for review prior to the deadline the
administrative judge set for him to refile his appeal. In similar cases, we have
construed the appellant’s petition for review as notice of the appellant’s intent to
refile his appeal. See, e.g. , King v. Departme nt of the Army , 84 M.S.P.R. 235 , ¶ 5
(1999) . Accordingly, we forward this matter to the Dallas Regional Office for
docketing as a timely refiled appeal.3
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide l egal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
3 Based on our finding, we need not reach the issue of whether this USERRA appeal is
barred under the doctrines of res judicata or collateral estoppel due to the appellant’s
previous USERRA appeal dismissed by the Board and/or civil actions he filed in the
United States District Court for the Western District of Arkansas. See Midyett v.
Department of Veterans Affairs , MSPB Docket No. DA -4324 -12-0568 -I-1, Initial
Decision (Mar. 8, 2013).
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 ap propriate in any matter.
6
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read ca refully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
withi n 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the cour t’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono rep resentation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circ uit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
7
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your repres entative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex , national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact infor mation for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file a ny such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your r epresentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
8
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in secti on 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 th e 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 compe tent 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 Federa l Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circu it is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interest ed in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appella nts before the 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 we bsites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MIDYETT_F_ALLAN_DA_4324_15_0569_I_2_FINAL_ORDER_1968956.pdf | 2022-10-14 | null | DA-4324 | NP |
4,027 | https://www.mspb.gov/decisions/nonprecedential/ADAMS_CHARLES_D_DC_3443_22_0388_I_1_FINAL_ORDER_1968959.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHARLES D. ADAMS,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DC-3443 -22-0388 -I-1
DATE: October 14, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Charles D. Adams , Herndon, Virginia, pro se.
Paul Y. Kim , Redstone Arsenal, Alabama, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. On review, the appellant argues that
his former employing agency committed prohibited personnel practices and 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).
2
the revocation of his security clearance was discriminatory.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 RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
2 The appellant has filed several petitions for review in different Board appeals, which
the Board will address separately.
3 Because the Board lacks jurisdiction over this appeal, we find it unn ecessary to
consider the appellant’s motion to compel. Barry v. Department of the Army ,
44 M.S.P.R. 432 , 436 n.3 (1990) (stating that be cause the Board lacked jurisdiction
over the appeal, there was no need to consider the appellant’s motions, including a
motion to compel, in his petition for review).
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
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described b elow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicia l review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Ci rcuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Pe titioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit ou r website at
4
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any att orney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action in volves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other secur ity. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
5
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial deliver y or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protectio n
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice descri bed in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
5 The original statutory provision that provided for judicial review of certain
whistleblower claim s by any court of 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 certai n whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsit es.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ADAMS_CHARLES_D_DC_3443_22_0388_I_1_FINAL_ORDER_1968959.pdf | 2022-10-14 | null | DC-3443 | NP |
4,028 | https://www.mspb.gov/decisions/nonprecedential/ADAMS_CHARLES_DERECK_DC_3443_22_0385_I_1_FINAL_ORDER_1968962.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHARLES DERECK ADAMS ,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER S
DC-3443 -22-0385 -I-1
DC-3443 -22-0387 -I-1
DATE: October 14, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Charles Dereck Adams , Herndon, Virginia, pro se.
William R. Di Iorio , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed petition s for review of the i nitial decision, which
dismissed these joined appeal s on the grounds of adjudicatory efficiency. On
review, the appellant argues that the Board has jurisdiction over these appeal s
because he raised, among other things, allegations of discrimination and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
prohibited personnel practice s in connection with the revocation of his security
clearance.2 Generally, we grant petitions such as th ese only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial d ecision 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 rec ord closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in these appeal s, we conclude that the petitioner ha s not
established any basis under section 1201.115 for granting the petition s for review.
Therefore, we DENY the petition s for review and AFFIRM the initial decision,
which is now the Board’s final decision.3 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
2 The appellant has filed several petitions for review in different Board appeals, which
the Board will address separately.
3 Because we find that the appeal s were properly dismissed for adjudicatory efficiency,
we find it unnecessary to consider the appellant’s motion to compel. Cf. Barry v.
Department of the Army , 44 M.S.P.R. 432 , 436 n.3 (1990) (stating that because the
Board lacked jurisdiction over the appeal, there was no need to consider the appellant’s
motions, including a motion to compel, in his petition for review).
4 Since the issuance o f the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
Systems Prot ection 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 b e received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
4
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination cl aims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
5
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washi ngton, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW 12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no chal lenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review e ither with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
5 The original statutory provisi on that provided for judicial review of certain
whistleblower claims by any court of 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 appellant s to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “G uide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit , you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor war rants that
any attorney will accept representation in a given case.
The All Circuit Review Act is retroac tive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ADAMS_CHARLES_DERECK_DC_3443_22_0385_I_1_FINAL_ORDER_1968962.pdf | 2022-10-14 | null | S | NP |
4,029 | https://www.mspb.gov/decisions/nonprecedential/THURMAN_STEVE_GORDON_AT_1221_16_0220_W_1_REMAND_ORDER_1969006.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
STEVE GORDON THURMAN ,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-1221 -16-0220 -W-1
DATE: October 14, 2022
THIS ORDER IS NONPRECEDENTIAL1
Ward A. Meythaler , Tampa, Florida, for the appellant.
Janell N. Bell , Esquire, Washington, D.C. , for the agency.
BEFORE
Cathy A. Harris , Vice Chair man
Raymond A. Limon , Member
Tristan L. Leavitt , Member
REMAND ORDER
¶1 The 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,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
VACATE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant, who was a Police Officer at the Veterans Affairs (VA)
Medical Center in Tampa, Florida (Tampa VA) , applied for t he Chief of Police
position in October 2014, but was not selected. Initial Appeal File (IAF), Tab 5
at 81-86, 182. The appellant alleges that the Tampa VA’s Associate Director
admitted during a December 10, 2014 meeting that the appellant was “without a
doubt [t]he best qualified for the position,” but that the current Deputy Chief of
Police “was the heir -Apparent for [the] job” of Police Chief and “was going to be
the Chief no matter what. ” Petition for Review ( PFR ) File, Ta b 1 at 61. The
Associate Director allegedly offered the appellant the Deputy Chief of Police
position instead. Id. The appellant contested the preselection to the Associate
Director and subsequently to various other agency officials. Id. at 61-62. In
April 2015, the agency proposed the appellant’s suspension for 14 days, and that
action was effected in July 2015. IAF, Tab 5 at 22-31, 90-92.
¶3 The appellant filed a complaint with the Office of Special Counsel (OSC)
alleging that his suspension was in retaliation for his disclosures regarding the
agency’s unfair hiring practices and preselection for the Chief of Police position.
PFR File, Tab 1 at 57. In a written statement that the appellant allegedly
submitted with his OSC complaint, he claimed that he made various disclosures to
eight agency officials concerning the selection for the Police Chief position. Id.
at 61-63, 71. In a letter dated October 21, 2015, OSC notified the appellant that it
had closed its inquiry into his complaint. Id. at 57-58.
¶4 The appellant thereafter filed this IRA appeal with the Board and requested
a hearing. IAF, Tab 1. In an order on jurisdiction, the administrative judge
informed the appellant that the Board might not have jurisdiction over the appeal ,
apprised him of his burden of proving jurisdiction , and ordered him to file a
3
statement and evidence on the jurisdictional issue. IAF, Tab 3. The record
does not include a jurisdictional response from the appellant, and thereafter the
administrative judge reiterated his order for the appellant to establish jurisdiction
and directed the appellant to show cause why the appeal should not be dismissed .
IAF, Tab 17 at 1-2. The appe llant responded. IAF, Tab 18.
¶5 Without holding the requested hearing, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 21, Initial
Decision (ID) at 1, 5 -6. Specifically, the administrative judge found that the
appellant failed to prove that he exhausted his administrative remedies with OSC.
ID at 4-5. The administrative judge further found that the appellant failed to
make a nonfrivolous allegation that his protected disclosures were a contributing
factor in his suspension. ID at 5.
¶6 The appellant has filed a petition for review claiming, among other things,
that the administrative judge failed to consider his response to the jurisdictional
order. PFR File, Tab 1 at 8, 12 -14. He has submitted a jurisdictional response on
review that he claims was filed with the administrative judge and not considered .
Id. at 8, 12 -14, 21-70. The agency has filed a response, PFR File, Tab 5, to which
the appellant has replied, PFR File, Tab 6.
DISCUSSION OF ARGUME NTS ON REVIEW2
¶7 Under the Whistleblower Protection Enhance ment Act of 2012 , the Board
has jurisdiction over an IRA appeal if the appellant has exhausted his
administrative remedies before OSC and makes nonfr ivolous allegations that:
(1) he made a protected disclosure described under 5 U.S.C. § 2302 (b)(8) or
engaged in protected activity described under 5 U.S.C. § 2302 (b)(9)(A)(i), (B),
(C), or (D); and (2) the disclosure or protected activity was a contributing factor
in the agency’s decision to take or fail to take a personnel action as defined by
2 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
4
5 U.S.C. § 2302 (a). Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5
(2016) . For the following reasons, we vacate the initial decision because we find
that the appellant has estab lished jurisdiction over his IRA appeal.
¶8 In his petition for review, the appellant argues that the administrative judge
erroneously failed to consider his response to the jurisdiction order dated
January 5, 2016. PFR File, Tab 1 at 8, 12 -14; IAF, Tab 3. He has submitted
evidence purportedly showing that he faxed a document titled “Appellant’s
Response to Order on Jurisdiction and Proof Requirements” to both the
administrative jud ge and agency representative on January 13, 2016. PFR File,
Tab 1 at 67-70. In addition, the agency representative concedes that the agency
received the appellant’s jurisdictional response below. PFR File, Tab 5 at 6.
However, as previously noted, this submission was not included in the record.
¶9 Although the appellant’s asse rtions suggest that he responded to the
January 5, 2016 Order, we need not make a finding on the matter or determine if
there was an adjudicatory error . The issue of the Board’s jurisdiction is always
before the Board and may be raised by either party or sua sponte by the Board at
any time during a proceeding . Simnitt v. Department of Veterans Affairs ,
113 M.S.P.R. 313 , ¶ 5 (2010). Therefore, we will consider the appellant’s
jurisdictional evidence submitted on review. See id., ¶¶ 5, 9 (remanding the
appellant’s IRA appeal for adjudication when she submitted evidence of OSC
exhaustion for the first time on review ). This includes the appellant’s statements
made in an affidavit dated July 21, 2016 , which he submitted on review. PFR
File, Tab 1 at 71-72. In particular, we consider his statement that he submitted a
document titled “Prohibited Person al [sic] Practice” to OSC in conne ction with
his OSC complaint. Id. at 60-66, 71. We also consider his statement that , in his
OSC complaint, he raised the issue of the agency’s gross waste of funds by
conducting interviews for the Police Chief position when it had made a
preselection . Id. at 72.
5
The appellant has proven by preponderant evidence that he exhausted his
administrative remedies before OSC regarding his disclosures.
¶10 In an IRA appeal, the appellant must first prove that the Board has
jurisdiction over the appeal by proving, inter alia, that he exhaus ted his
administrative remedies before OSC. 5 U.S.C. § 1214 (a)(3). The Board has
recently clarified the substantive requirements of exhaustion. Chambers v.
Department of Homeland Security , 2022 MSPB 8 , ¶¶ 10-11. The requirements
are met when an appellant has provided OSC with sufficient basis to pursue an
investigation. Th e Board’s jurisdiction is limited to those issues that have been
previously raised with OSC. However, an appellant may give a more detailed
account of his whistleblowing activities before the Board than he did to OSC. An
appellant may demonstrate exhaust ion through his initial OSC complaint,
evidence that he amended the original complaint, including but not limited to
OSC’s determination letter and other letters from OSC referencing any amended
allegations, and the appellant’s written responses to OSC ref erencing the
amended allegations . An appellant may also establish exhaustion through other
sufficiently reliable evidence, such as an affidavit or a declaration attesting that
the appellant raised with OSC the substance of the facts in the Board appeal. Id.
¶11 For the following reasons, we find that the appellant provided OSC wi th a
sufficient basis to pursue an investigation involving his disclosures of unfair
hiring practices at the Tampa VA . On appeal before the Board , the appellant
provided a sworn affidavit averring that he submitted a letter to OSC outlining
various disclosures to eight agency officials . PFR File, Tab 1 at 61-63, 71. The
appellant, in his letter to OSC , contended that on December 30, 2014, he told the
Tampa VA’s Associate Director that he could not choose the selectee for the
Police Chief position b ecause the appellant was the only qualified candidate who
met the time -in-grade key requirement of the position , and other issues existed
with the selectee’s application . Id. at 61. The appellant also alleged in his letter
that he documented his concerns about the selectee’s qualifications and his
6
apparent preselection in a December 31, 2014 email to the Associate Director . Id.
at 62. Next , the appellant asserted in his letter that, when a human resources
(HR) official contacted the appella nt on January 9, 2015 , to announce the final
selection for the Police Chief position , he told the HR official the selectee
was not qualified for the position. Id. The appellant alleges that he next
communicated the issue with the preselection to his own supervisor , also on
January 9, 2015 , followed by four other HR officials that same afternoon,
including the Assistant HR Chief and the Acting HR Chief. Id. Finally, the
appellant indicated in his letter that he told “many others in leadership ,”
including the Chief of Staff and the former Chief of Police , of the alleged
prohibited personnel practice . Id. at 63. Altogether, the letter the appellant
submitted to OSC i dentif ies the content of his disclosures, the individuals to
whom they were made, the natu re of the personnel action that was allegedly taken
in retaliation, and the individuals responsible for taking that action . This gave
OSC more than sufficient basis to pursue an investigation . Id. at 60-66.
Therefore, we find that the appellant exhausted his administrative remedies
before OSC regarding these disclosures .
¶12 In addition to the aforementioned disclosures , the appellant claims that he
communicated to the Acting HR Chief on December 10, 2014 , that the other
applicant for the Police Chief position was not qualified. PFR File, Tab 1 at 9,
24. While this particular disclosure was not explicitly communicated in the
document he submitted to OSC, the document did reference his December 10,
2014 contact with the Acting HR Chief. Id. at 61. Furthermore, the appellant
alleges he continued to express his concerns to the Acting HR Chief about the
selection process. Id. at 62. We find that this gave OSC sufficient basis to
pursue an investigation into the appellant’s disclosures as early as December 10,
2014.
¶13 Additionally, the appellant, in an affidavit he submitted on review to the
Board , avers that he raised a co ncern with OSC that the Tampa VA’s interview
7
process for the Police Chief position constituted a gross waste of funds , given its
preselection of a candidate for the position. Id. at 72.3 By contrast, t he record
contains no evidence regarding whether the appellant raised with OSC the
alleg ation subsequently raised before the Board that the preselection was an abuse
of authority by the selecting official. IAF, Tab 18 at 5-7; see Hansen v. Merit
Systems Protection Board , 746 F. App’x 976, 980 (Fed. Cir. 2018) (defining
abuse of authority as, for example, “an arbitrary or capricious exercise of power
by a Federal official or employee that adversely affects the rights of any person or
that results in personal gain or advanta ge to himself or to preferred other
persons” ). Nevertheless, as long as an appellant provides OSC with sufficient
basis to pursue an investigation, he need not explicitly or even correctly label all
legal theories behind a claim for it to be considered ex hausted before OSC . As
we have previously held, OSC can be expected to know which category of
wrongdoing might be implicated by a particular set of factual allegations .
Pasley v. Department of the Treasury , 109 M.S.P.R. 105 , ¶ 12 (2008) ; see also
Mount v. Department of Homeland Security , 937 F.3d 37 , 47-48 (1st Cir. 2019).
Thus, we find that the administrative judge should have considered these
allegations, which were raised below. IAF, Tab 18 at 5.
The appellant has nonfrivolous ly alleged that he made protected disc losure s.
¶14 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 his position would believe evidenced one of the
categories of wrongdoing specified in 5 U.S.C. § 2302 (b)(8). Salerno ,
123 M.S.P.R. 230, ¶ 6. The test to determine whether a putative whistleblower
has a reasonable belief in the disclosure is an objective one: whether a
3 The appellant also alleged below that he made disclosures regarding safety issues with
officers not “arming up” and the issuance of overtime money to officers on travel. IAF,
Tab 18 at 5, 7. Because the appellant asserts on review that these disclosures are no
longer part of this appeal, we decline to address them further. PFR File, Tab 1 at 11-12.
8
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the empl oyee could reasonably conclude that the actions of the
agency evidenced 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 or safety. Id. The disclosures must be specific, not vague
allegations of wrongdoing. Id.; see El v. Department of Commerce , 123 M.S.P.R.
76, ¶ 6 (2015) (stating that vague, conclusory, unsupported, and pro forma
allegations of alleged wrongdoing do not meet the nonfrivolous pleading standard
needed to establish the Board’s jurisdiction over an IRA appeal), aff’d , 663 F.
App’x 921 (Fed . Cir. 2016).
¶15 Here , the appellant argued that his disclosures to various VA officials
concerning the qualifications and preselection of the selectee for the Police Chief
position were protected because a disinterested observer with knowledge of the
essential facts known to and readily ascertainable by the appellant could
reasonably conclude that the agency’s selection violated a law, ru le, or regulation
concerning Federal hiring practices. PFR File, Tab 1 at 61 -62. Specifically, the
appellant asserted that the selectee did not meet the time -in-grade key
requirement of the Police Chief position. Id. at 5, 9, 21, 24, 61 -62; IAF, Tab 1
at 6, Tab 18 at 5. The record supports his allegation that the Police Chief position
was subject to a time -in-grade key requirement. IAF, Tab 5 at 82. Additionally,
the appellant alleged that the agency had conducted a “sham” hiring process with
the inte nt to simply hire the selectee. PFR File, Tab 1 at 22, 61-62; IAF, Tab 1
at 6, Tab 18 at 5-6. We find that the appellant has made a nonfrivolous allegation
that these disclosures were protected.
The appellant has nonfrivolously alleged that his protect ed disclosures were a
contributing factor in his suspension.
¶16 To satisfy the contributing factor criterion at the jurisdictional stage of the
case, an appellant need only raise a nonfrivolous allegation that the fact or
content of the protected disclosure was one factor that tended to affect the
9
personnel action in any way. Sherman v. Department of Homeland Security ,
122 M.S.P.R. 644, ¶ 8 (2015). 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.
¶17 Here , we find that the appellant has made a nonfrivolous allegation that the
proposing and deciding officials knew of his protected disclosures shortly before
they suspended him. PFR File, Tab 1 at 10, 25; IAF, Tab 18 at 5. In the
appellant’s written reply t o the proposed suspension, he wrote that he “reported”
to the Associate Director and an HR official that the selectee for the Police Chief
position did not meet the time -in-grade key require ment of the position . The
appellant likewise reported that the sel ectee was being selected because he was
the “heir apparent,” and so his qualifications did not matter . IAF, Tab 5 at 50-51.
The p roposing official followed up on the appellant ’s written reply by asking an
agency official whether the selectee for the Police Chief position met the time -in-
grade key requirement. Id. at 139. Further, the deciding official stated that she
considered the appellant’s written reply in reaching her decision to suspend him.
Id. at 30. Thus, we find that the appellant has met the requirements of the
knowledge -timing test , and therefore has satisfied the contributing
factor criterion .
¶18 Accordingly, we conclude that the appellant has established jurisdiction
over his IRA appeal, and thus, we must remand the appeal for a hearing on the
merits of his claim. See Rusin v. Department of the Treasury , 92 M.S.P.R. 29 8,
¶¶ 20-21 (2002) (remanding the appellant’s IRA appeal for a hearing on the
merits when he established the Board’s jurisdiction).
10
ORDER
¶19 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | THURMAN_STEVE_GORDON_AT_1221_16_0220_W_1_REMAND_ORDER_1969006.pdf | 2022-10-14 | null | AT-1221 | NP |
4,030 | https://www.mspb.gov/decisions/nonprecedential/HAWKINS_DANIELLE_SF_0752_16_0796_I_2_FINAL_ORDER_1970544.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DANIELLE HAWKINS,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
SF-0752 -16-0796 -I-1
DATE: October 14, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ariel E. Solomon , Esquire and Paul G. Buchbinder , Esquire, Albany, New
York, for the appellant.
Camille D.S. Stroughter , Esquire, Oakland, California, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appeal without prejudice to refiling and deemed her affirmative
defenses withdrawn . For the reasons discussed below, we GRANT the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and a dministrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c).
2
appellant ’s petition for review an d AFFIRM the initial decision as MODIFIED to
find that the administrative judge abused her discretion in deeming the appellant ’s
affirmative defenses withdrawn . Because the time period to refile this appeal has
passed , we FORWARD the appeal to the Western Regional Office for docketing
and adjudication as a refiled appeal .
BACKGROUND
¶2 On September 26 , 2016, the appellant filed an appeal challenging the
agency ’s de cision to remove her . Initial Appeal File (IAF), Tab 1. Due to
scheduling issues, in a June 29, 2017 initial decision, the administrative judge
dismissed the appeal without prejudice. IAF, Tab 37, Initial Decision (ID) at 2.
She determined that the appeal would automatically be r efile d on August 21,
2017. Id.
¶3 As a separate matter, the a dminist rative judge stated, “after multiple
extensions, the appellant never submitted the required information to supp ort her
affirmative defenses. ” Id. The administrative judge noted that she had issued an
order for the appellant to show cau se why she should not impose sanctions, such
as deeming the affirmative defenses withdrawn, but the appellant never
responded. Id.; see IAF, Tab 36. Accordingly, the administrative judge deemed
the appellant ’s affirmative defenses withdrawn. ID at 2.
¶4 In her pet ition for review, the appellant asserts that the administrative judge
abused her discretion in deeming her affirmative defenses withdrawn. Petition
for Review (PFR) File, Tab 1 at 8-13. The appellant asserts that her primary
counsel, who was an e-filer, did not see the administrative judge ’s show cause
order because she was out of her office receiving medical treatment, and her
co-counsel, who was not an e-filer, did not receive the show cause order until
after the date that the response was due. Id. at 10. The ap pellant asserts that she
became aware of the filing deficiency on the date the initial decision was issued,
3
and that she filed a response 1 day later. Id. The agency has responded in
opposition to the petition. PFR File, Tab 7 .
ANALYSIS
¶5 An administrative judge has the authority to impose sanctions for a party’s
failure to follow the Board ’s regulations or failure to respond to the
administrative judge ’s orders. Robinson v. Department of Veterans Affairs ,
94 M.S.P.R. 509, ¶ 10 (2003); see Guzman v. Department of Veterans Affairs ,
114 M.S.P.R. 566, ¶ 12 (2010); see also 5 C.F.R. § 1201.43 (a), (c). The
administrative judge should not resort to the imposition of sanctions unless
neces sary to serve the ends of justice. Guzman , 114 M.S.P.R. 566 , ¶ 12. The
Board ordinarily will not disturb an administrative judge ’s determination to
impose a sanction unless it is shown that the administrative judge abused her
discretion or that her erroneous ruling adversely affected a party ’s substantive
rights. E.g., Johnson v. Department of the Treasury , 108 M.S.P.R. 592 , ¶ 17
(2008).
¶6 The Board ’s regulations allow an administrative judge to impose sanctions
for failure to comply with an order, failure to prosecute or defend an appeal, or
failure to m ake a timely filing. 5 C.F.R. § 1201.43 . When a party fails to comply
with an order, the administrative judge , in her sound discretion, ma y (1) draw an
inference in favor of the requesting party regarding the information sought;
(2) prohibit the party failing to comply with the order from introducing evidence
concerning the information sought, or from otherwise relying upon testimony
related to that information; (3) permit the requesting party to introduce secondary
evidence concerning the information sought; and (4) eliminate from consideration
any appropriate part of the pleadings or other submissions of the party that fails
to comply with the order. 5 C.F.R. § 1201.43 (a). The administrative judge ’s
authority to impose sanctions “covers, but is not limited to, ” the circumstances
specifically set forth in section 120 1.43. 5 C.F.R. § 1201.43 .
4
¶7 The administrative judge’s June 14, 2017 Order directing the appellant to
show why the Board should not impose sanctions pursuant to 5 C.F.R. § 1201.43
followed an April 11, 2017 Order directing the appellant to provide specific
information re garding her affirmative defenses . IAF, Tabs 20, 36. The appellant
responded to the April 11, 2017 Order with requests for extensions of time . IAF,
Tabs 24, 31. T he administrative judge granted the appellant’s requests, first
affording her until May 19, 2017 , and then affording her until June 13, 2017 , to
respond . IAF, Tab s 24-25, 31, 35 . The appellant ’s failure to provide a
substantive response to the administrative judge’s April 11, 2017 Order is the
basis of her decision to impose sanction s. IAF, Tab 36; ID at 2.
¶8 The appellant states in her petition for review that she submitted the
information req uested by the administrative judge the day after the initial
decision was issued.2 PFR File, Tab 1 at 10. She explains that, when the primary
attorney’s co -counsel assumed representation, he was not a registered e -filer in
this matter and did not actually receive a copy of the show cause order until after
the initial decision was issued. Considering the extenuating circumstances in this
case and the lack of any indication of abandonment or bad faith on the part of the
appellant, we f ind that the administrative judge abused her discretion in striking
the appellant ’s affirmative defenses. See Guzman , 114 M.S.P.R. 566, ¶¶ 9-17;
Simon v. Department of Commerce , 111 M.S.P.R. 381, ¶¶ 11-15 (2009).
¶9 Additionally, t he sanction imposed by the administrative judge is
problematic because the appellant clearly asserted her affirmative defenses, even
2 The regional office received the appellant’s submissions on June 20 and 27 , 2017,
after the Board’s initial decis ion was issued in this appeal. However , the submission s
were returned . IAF, Tab s 39 -40. No copy of the appellant ’s alleged sub mission in
response to the show cause order is in the record. On review , the appellant asks the
Board to consider her response to the show cause order . PFR File, Tab 1 at 6. Her
explanation for not timel y filing a response to the show cause order , i.e., that counsel
did not timely see the show cause order on the Board’s e -Appeal system , does not
establish good cause for her delayed filing, and we there fore deny her reques t that the
response be considered . See 5 C.F.R. § 1201.114 (f).
5
if in su mmary fashion, IAF, Tabs 1 , 16, and she never expressed any intent to
withdraw t hese defenses. Also, t he agency did not suggest the extreme sanction
that the administrative judge imposed. Further , the appellant ’s representative did
file motions for enlargement of time to file submissions regarding the appellant’s
affirmative defenses, IAF, Tabs 24, 31, and to suspend the case for a 30 -day
period, IAF, Tab 9.3
¶10 As noted, in the initial decision , the administrative judge dismissed the
appeal without prejudice and stated that the appeal would be automatically refile d
on August 21, 2017. ID at 2. As that date has passed, we forward this matter to
the Board’s Western Regional Office for continued adjudication.
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 o f available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fal l within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
3 The appellant has requested oral argument on the issues raised in her petition for
review. PFR File, Tab 1 at 8. We find that oral argument on these matters is not
needed, and we ther efore deny that request.
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 th e notice, the
Board cannot advise which option is most appropriate in any matter.
6
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained wi thin the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for inf ormation regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case .
7
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on u nlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
8
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial revi ew pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8 ) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Fe deral Circuit or any court
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 Feder al Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” whi ch is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.g ov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representati on in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/ Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HAWKINS_DANIELLE_SF_0752_16_0796_I_2_FINAL_ORDER_1970544.pdf | 2022-10-14 | null | SF-0752 | NP |
4,031 | https://www.mspb.gov/decisions/nonprecedential/HANSON_HODGE_PAULA_DC_0432_14_0475_I_1_REMAND_ORDER_1968304.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PAULA HANSON -HODGE,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.
DOCKET NUMBER
DC-0432 -14-0475 -I-1
DATE: October 13, 2022
THIS ORDER IS NONPRECEDENTIAL1
Paula Hanson -Hodge , Upper Marlboro, Maryland, pro se.
Clary Simmonds , Esquire, Baltimore, Maryland, for the agency.
Donald K. Neely , Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed her removal for unacceptable performance under 5 U.S.C. chapter 43.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
For the reasons discussed below, we GRANT the appellant’s petition for review ,
VACATE the initial dec ision, and REMAND the case to the Washington
Regional Office for further adjudication in accordance with this Remand Order
and Santos v. National Aeronautics & Space Administration , 990 F.3d 1355 (Fed.
Cir. 2021).
BACKGROUND
¶2 The agency removed the appellant from the GS -13 Paralegal Specialist
position based on the charge of un acceptable performance. Initial Appeal File
(IAF), Tab 9 at 27, 28, 91. Specifically, the agency found that the appellant was
not successful in the critical element “Achieves Business Results” which includes
the performance standard “[p]roduces a fair sh are of work according to
supervisory expectations,” because she did not reach a production quota level of
70% necessary to receive a rating of fully successful in the agency’s three -level
performance rating system. Id. at 93.
¶3 On appeal, the appellant al leged that the agency’s action violated 5 U.S.C.
§ 4303 and constituted retaliation for her prior equal employment opportunity
(EEO) activity. IAF, Tab 1. Based on her review of the record, the
administrative judge found that the agency proved by substantial evidence that:
(1) it took the action under a performance appraisal system approved by the
Office of Personnel Management (OPM); (2) the appellant’s performance
standards were valid and commu nicated to her; (3) the appellant’s performance in
the critical element “Achieves Business Results” was deficient as charged; and
(4) it provided the appellant with a reasonable opportunity to demonstrate
acceptable performance prior to effecting the remov al action. IAF, Tab 43, Initial
Decision (ID) at 8 -28. The administrative judge also found that the appellant
failed to show by preponderant evidence that the agency removed her in
retaliation for her protected activity of filing EEO complaints. ID at 28-31.
3
¶4 In her petition for review,2 among other things, the appellant argues that the
70% production quota level expectation is merely unofficial because the agency’s
Commissioner did not approve it. Petition for Review (PFR) File, Tab 1. She
also asserts that other employees who did not make the 70% expectation did not
get removed, and the administrative judge did not allow a witness who would
have testified about employees who did not make the 70% expectation and were
not placed on an Opportunity to Perf orm Successfully (OPS)3 or removed. Id.
The appellant further contends that her supervisors interfered with her ability to
produce at the 70% expectation by not allowing her to work on flexiplace. Id.
Additionally, the appellant asserts that the admini strative judge erred in finding
that the appellant’s supervisor was a credible witness. Id. She argues moreover,
that the administrative judge erred in finding that the appellant did not establish
her claim of retaliation for filing an EEO complaint beca use of the proximity in
time of the adverse action and her complaint.4 Id.
2 The appellant attached a number of documents to her petition for review. Petition for
Review File, Tab 1. Under 5 C.F.R. § 1201.115 (d), the Boa rd will not consider
evidence submitted for the first time with the petition for review absent a showing that
it was unavailable before the record was closed despite the party ’s due diligence.
Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980). The appellant has failed
to make such a showing, and thus we have not considered those documents in granting
the appell ant’s petition for review. We note that one of the documents submitted on
petition for review is a Standard Form (SF) 50 showing that the appellant received a
within -grade increase based on a determination that her work performance was at an
acceptable le vel of competence. The determination of acceptable level of competence
was made on November 1, 2013, only 2 weeks before the agency proposed the
appellant’s removal for unacceptable performance. However, the parties did not submit
this SF -50 below and di d not argue its significance. Thus, we have not weighed it in
reaching the decision to grant the petition for review.
3 An OPS is the agency’s performance improvement plan. IAF, Tab 9 at 29.
4 Following the submission of her petition for review, the appe llant also filed a motion
for leave to file additional pleadings. PFR File, Tab 5. In this motion, the appellant
seeks leave to submit her previously mentioned SF -50, two declarations from the
American Federation of Government Employees union representat ive, and for the Board
to consider two cases ( Salmon v. Social Security Administration , 663 F.3d 1378 (Fed.
Cir. 2011) and Wilson v. Department of Health & Human Services , 770 F.2d 1048 (Fed.
Cir. 1985)). The appellant has failed to explain how this additional evidence could not
4
ANALYSIS
¶5 At the time the initial decision was issued, the Board’s case law stated that,
in a performance -based action under 5 U.S.C. chapter 43, an agency must
establish by substa ntial evidence that: (1) O PM approved its performance
appraisal system; (2) the agency communicated to the appellant the performance
standards and critical elements of h er 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 h er performance during the appraisal period and
gave h er a reasonable opportunity to improve; and (5) the appellant’s
performance remained unacceptable in at least one critical element. White v.
Department of Veterans Affairs , 120 M.S.P.R. 405 , ¶ 5 (2013).5 As discussed
below, we discern no basis to disturb the administrative judge’s findings in the
initial decision .
The appellant has not established any error in the administrative judge findings
that the agency’s performance standards were valid and that the appellant was
provided a reasonable opportunity to improve .
¶6 Although the appellant stipulated that OPM approved the agency’s
performance appraisal system , IAF, Tab 41; ID at 8, she a sserts, as she did below,
that the performance standards are not valid because the 70% benchmark was not
established by the agency Commissioner. The administrative judge addressed this
assertion, ID at 9, 13 -14. She found that performance standards need not be
centrally established by agencies and there is no requirement that the 70%
minimum standard be handed down directly by the Commissioner. Id.; see
Jackson v. Department of Veterans Affairs , 97 M.S.P.R. 13 , ¶ 14 (2004); Wells v.
have be en submitted below before the record closed or how it would change the initial
decision as required by 5 C.F.R. § 1201.114 (a)(5). Accordingly, the appellant’s motion
for leave to submit additional evidence is denied.
5 Although White provides that criterion 3 requires that performance standards be valid
under 5 U.S.C. § 4302 (b)(1), the National Defense Authorization Act for Fisc al Year
2018 redesignated subsection 4302(b) as subsection 4302(c). Pub. L. No. 115 -91,
§ 1097(d)(1)(A), 131 Stat. 1283, 1619 (2017) .
5
Harris , 1 M.S.P.R. 208 , 212 (1979), modified by Gende v. Department of Justice ,
23 M.S.P.R. 604 (1984). As the administrative judge found, the managerial
authority to decide what agency employees must do to perform acceptably is
delegated to supervisors in the text of the critical element itself where it states
under “Achieves Business Results” tha t the employee must “[p]roduce a fair share
of work according to supervisory expectations.” IAF, Tabs 9, 10, Subtab 4t; ID
at 9; see Jackson , 97 M.S.P.R. 13 , ¶ 14. We thus agree with the administrative
judge that there is no requirement that the performance standard be handed down
by the Commissioner.
¶7 The appellant’s assertion, that other employees who did not make th e 70%
expectation were not placed on an OPS plan or removed, is raised for the first
time on petition for review. PFR File, Tab 1. The Board generally will not
consider an argument raised for the first time in a petition for review absent a
showing that it is based on new and material evidence not previously available
despite the party’s due diligence. Banks v. Department of the Air Force ,
4 M.S.P.R . 268 , 271 (1980). Here, the appellant has presented no such evidence.
¶8 The appellant asserts, however, that the administrative judge rejected
proposed witnesses that would have allowed the appellant to prove her assertion
that others did not make the 70% expectation, but were not placed on an OPS or
disciplined. The appellant does not identify who these witnesses were. The
administrative judge did deny some of the appellant’s witnesses as noted in the
summary of prehearing conference. IAF, Tab 41. How ever, there is no
suggestion that any of these witnesses would have testified to whether other
employees who did not meet the 70% benchmark were neither placed on an OPS
nor removed. Id. Further, the appellant did not object to the summary, despite
the a dministrative judge informing the appellant that she could do so, and thus
she is precluded from objecting on petition for review. See McCarthy v.
International Boundary & Water Commission , 116 M.S.P.R. 594 , ¶ 25 (2011)
(finding that the appellant’ s failure to timely object to rulings during the hearing
6
precludes her from doing so on peti tion for review), aff’d, 497 F . App’x 4 ( Fed.
Cir. 2012); Tarpley v. U.S. Postal Service , 37 M.S.P.R. 579 , 581 (1988) ( stating
that the appellant ’s failure to timely object to th e administrative judge ’s rulings
on witnesses precludes her from doing so on review).
¶9 The appellant reiterates the assertion she made below that she was denied a
reasonable opportunity to improve because the agency did not allow her to work
on flexiplace . PFR File, Tab 1. The administrative judge found this
unpersuasive. ID at 25. The administrative judge relied on the credible
testimony of the appellant’s supervisors to find that whether the appellant worked
from home or her office had no bearing on her productivity. Id. The appellant
argues that her supervisors’ testimony was not credible. However, the Board
must defer to an administrative judge’s credibility determinations when they are
based, explicitly or implicitly, on observing of the demeano r 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) . We find that the appellant’s mere assertion
that her supervisors lied is not a sufficiently sound reason to overturn the
administrative judge’s credibility determination.
The appellant has not established any error in the administrative judge’s findings
as it relates to her claim of EEO retaliation.
¶10 Finally, the appellant asserts that she proved her affirmative defense of
retaliation for filing an EEO complaint because the agency took t he removal
action close in time to when she filed her complaint, and that the action must be
overturned on that basis. PFR File, Tab 1. We disagree. The administrative
judge considered the appellant’s assertion, and properly found that this evidence
alone was insufficient for the appellant to meet her burden. ID at 30 -31. She
found, based on the strong evidence, including the supervisors’ credible
testimony, that the appellant’s performance was unsuccessful, and that nothing in
the agency’s actions lea ding up to the appellant’s removal suggested that the
7
removal was motivated by anything other than the appellant’s performance
deficiencies. ID at 31.
Remand is necessary to afford the parties an opportunity to submit evidence and
argument regarding whe ther the appellant’s placement on a Performance
Improvement Plan ( PIP) was proper.
¶11 Although the appellant has identified no basis for us to disturb the
administrative judge’s findings below, we nonetheless must remand this appeal
for another reason. During the pendency of the petition for review in this case,
the U .S. Court of Appeals for the Federal Circuit held in Santos , 990 F.3d
at 1360 -61, that in addition to the five elements of the agency’s case set forth in
the initial decision, the agency must also justify the institution of a PIP by
proving by substantial evidence that the employee’s performance was
unacceptable prior to the PIP. The Federal Circuit’s decision in Santos applies to
all pending cases, including this one, regardless of when the events took place.
Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 16. Although the record
in this appeal already contains evidence suggesting that the appellant’s
performance leading up to the PIP was indeed unacceptable, we remand the
appeal to give the parties the opportunity to present argument and additio nal
evidence (including the SF -50 mentioned above) on whether the appellant’s
performance during the period leading up to the PIP was unacceptable in one or
more critical elements. See id., ¶¶ 15-17. On remand, the administrative judge
shall accept argum ent and evidence on this issue, and shall hold a supplemental
hearing if appropriate. Id., ¶ 17.
¶12 The administrative judge shall then issue a new initial decision consistent
with Santos . See id. If the agency makes the additional showing required under
Santos on remand that the appellant’s performance in at least one critical element
was at an unacceptable level prior to her placement on the PIP, the administrative
judge may incorporate her prior findings on the other elements of the agency’s
case and th e appellant’s affirmative defense in the remand initial decision. See
8
id. 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 o f the appellant’s affirmative defense, she should
address such argument or evidence in the remand initial decision. See Spithaler
v. Office of Personnel Management , 1 M.S.P.R. 587 , 589 (1980) (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 a nd his legal reasoning, as well as the authorities on which
that reasoning rests).
ORDER
¶13 For the reasons discussed above, we REMAND this case to the Washington
Regional O ffice for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HANSON_HODGE_PAULA_DC_0432_14_0475_I_1_REMAND_ORDER_1968304.pdf | 2022-10-13 | null | DC-0432 | NP |
4,032 | https://www.mspb.gov/decisions/nonprecedential/BECKER_RICHARD_A_DA_3443_16_0064_I_1_FINAL_ORDER_1968370.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RICHARD A. BECKER,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DA-3443 -16-0064 -I-1
DATE: October 13, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Richard A. Becker , Coram, New York, pro se.
Susan J. Sandidge , Dallas, Texas, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has file d a petition for review of the initial decision, which
dismissed his nonselection appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial de cision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the reco rd closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 On April 24, 1 966, the appellant, a preference eligible, resigned from his
position as a Resident Manager at the Army & Air Force Exchange Service
(AAFES or agency) in Jakor . Initial Appeal File ( IAF), Tab 32, Initial Decision
(ID) at 1-2.2 AAFES is a Nonappropriated Fund Instrumentality (NAFI) of the
United States operating under the Department of Defense (DOD) . ID at 2. The
appellant filed an appeal with the Board alleging that he has been applying
annually for employment with AAFES since 1968 and his applications have been
overlooked. ID at 2. He argued that AAFES failed to acknowledge or respond to
any of his requests for reinstatement to his former position because of
discrimination based on hi s marriage to a Japanese woman and unspecified
retaliation. Id. The appellant also alleged that the agency violated the Uniformed
Services Employment and Reemploym ent Rights Act of 1994 (USERRA)
(codified as amended at 38 U.S.C. §§ 4301 -4335) and/or the Veterans
2 “Jakor” is a reference to “Japan/Korea.” ID at 2 n.2.
3
Employment Opportunities Act of 1998 (VEOA).3 ID at 4; IAF, Tab 15 at 3. The
appellant did not request a hearing on his appeal. ID at 2.
¶3 Because a question existed regarding the Boar d’s jurisdiction over this
appeal, the administrative judge notified the appellant of the elements and
burdens of establishing jurisdiction over his appeal under the applicable legal
standards, including VEOA and USERRA, and she ordered him to file evidenc e
and argument establi shing the Board’s jurisdiction. IAF, Tabs 2, 8, 18. The
appellant responded by asserting that he is a Gulf War veteran and that AAFES is
part of DOD and thus subject to the Board’s jurisdiction. ID at 3; IAF, Tab 3.
The appellant also asserted that, although he had filed complaints with the Equal
Employment Opportunity Commission, the Department of Labor (DOL), and the
Office of Special Counsel, he had not received any reply to those complaints. ID
at 3; IAF, Tab 3. The appellant did not indicate the bases for his complaints or
state when he filed them, or provide copies of them. ID at 3 n.5. The agency
responded by filing a motion to dismiss, arguing that the appeal was outside the
Board’s pu rview because the appellant was n ot an employee of AAFES, he
provided no evidence to sh ow that he ever applied, or was not selected, for a
position or that he was denied reinstatement, and the AAFES is a NAFI, over
which the Board lacks jurisdiction. In the alternative, the agency argued that the
appeal was untimely filed.4 IAF, Tab 7, at 5-7.
¶4 After considering the parties’ submissions on the jurisdictional issue, the
administrative judge dismissed the appeal for lack of jurisdiction based on the
written record. ID at 3-12. In dismiss ing the appeal, the administrative judge
found that the Board has no jurisdiction over the appeal of an adverse action filed
3 It is undisputed that the appellant performed military service and received an
honorable discharge. ID at 9.
4 Because the administra tive judge dismissed the appeal fo r lack of jurisdiction, she did
not make findings on the agency’s argume nt that the appeal was untimely filed.
4
by NAFI employees or former employees of AAFES. ID at 4. The administrative
judge also found that the appellant failed to establi sh by preponderant evidence
that he exhausted his administrative remedi es with DOL regarding the agency’ s
failure to select him for a position ; therefore, his request for corrective action
under VEOA mu st be dismissed . ID at 11-12. The administrative jud ge further
found that the appellant failed to establish jur isdiction over his appeal under
USERRA, applying the criteria for establishing jurisdiction over both
reemployment claims and discrimination claims under that statute . ID at 10,
12-13. In support of this finding, the administrative judge determined that the
Board lacks jurisdiction over this appeal as a USERRA reemployment case
because the appellant did not establish he was entitled to assert a right to
reemployment under 38 U.S.C. §§ 4312 -4318, given that he failed to show that
his 1966 resignation from AAFES was related to his performance of military duty
and both his employment and military duty occurred prior to 1994, the effective
date of the applicable statute. ID at 5. The administrative judge, moreove r,
found that the appellant did not demonstrate that the Board has jurisdiction over
his appeal because he did not show that his military status was a motivating or
substantial factor in the agency’s failure to select him for th e position(s) he
sought. ID at 9-11.
¶5 The appellant has filed a petition for review with the Board challenging the
initial decision. Petition for Review (PFR) File, Tab 1. The agency has
responded in opposit ion to his petition, and he has replied. PFR File, Tabs 3-4.
¶6 On review, the appellant generally references VEOA and USERRA, but he
does not clearly address the jurisdictional issues beyond mentioning that he made
sufficient allegations in his previous B oard appeals to establish jurisdiction here.5
5 The appellant has filed more than 80 appeals with the Board. Although that could
mean that some or all of the claims raised by the appellant in this case are barred under
the doctrine s of collateral estoppel or res judicata, we have not addressed those issues
5
PFR File, Tab 1 at 2. The appellant raises various arguments unrelated to the
dispositive jurisdictional issues, claiming that the agency lacked candor,
attempted to denigrate his employment history, and went out of its way to “cover
up the gross violations of the laws.” Id. The appellant also submits an illegible
copy of a letter he wrote to AAFES in 1979 inquiring about the status of a 1978
reinstatement application, which he filed in the Board’s Dallas Re gional Office
on August 4, 2016. Id. at 3.
¶7 Most of the appellant’s submissions on appeal and on review are difficult to
read. PFR File, Tabs 1, 4; IAF, Tab 14. Nonetheless, for the reasons stated in the
initial decision, we find that the administrativ e judge properly dismissed this
appeal for lack of jurisdiction. The administrative judge did an excellent job
clarifying the appellant’s various arguments and explaining why the appellant
failed to prove jurisdiction over his appeal under the applicable laws. Because
we find that the appellant’s evidence and argument on review provides no basis
for disturbing the thorough, well -reasoned initial decision, we deny his petition
for review.6 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 appropriat e inferences, and made
reasoned conclusions).
given our finding that the administrative judge properly d ismissed the appeal for lack of
jurisdiction .
6 On review, although t he appellant refers to a letter that he allegedly received from
DOL before the initial decision was issued in this appeal , he did not provide the Board
with a copy of that letter as proof that h e exhausted his claims before DO L to establish
jurisdiction over his appeal under VEOA . PFR File, Tab 1 at 2; ID at 12; see
Gingery v. Office of Personnel Management , 119 M.S.P.R. 43 , ¶ 13 (2012) ( finding that
the Board must dismiss a VEOA claim if the appellant cannot show that he exhausted
his DOL remedy).
6
NOTICE OF APPEAL RIG HTS7
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition f or review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of rev iew rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practi ce, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono repr esentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after yo u
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. I f the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
8
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you su bmit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via com mercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleb lower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
9
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Fed eral Circuit or any court
of appeals of competent jurisdiction.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 o f appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Co urt_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BECKER_RICHARD_A_DA_3443_16_0064_I_1_FINAL_ORDER_1968370.pdf | 2022-10-13 | null | DA-3443 | NP |
4,033 | https://www.mspb.gov/decisions/nonprecedential/VERA_ROGELIO_DA_0432_16_0517_I_1_REMAND_ORDER_1968402.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROGELIO VERA,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DA-0432 -16-0517 -I-1
DATE: October 13, 2022
THIS ORDER IS NONPRECEDENTIAL1
Gary Mellor , Corpus Christi, Texas, for the appellant.
Kenneth M. Muir , Corpus Christi, Texas, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency ’s action demoting him for unacceptable performance,
pursuant to 5 U.S.C. chapter 43 . For the reasons discussed below, we GRANT
the appellant ’s petition for review , VACATE the initial decision, and REMAND
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c).
2
the case to the Dallas Regional Office for further adjudication in accordance with
this Remand Order.
BACKGROUND
¶2 The appellant formerly held a WG-10 Machinist position with the agency.
Initial Appeal File (IAF), Tab 1 at 2. On February 23, 2016, the agency issued a
memorandum notifyi ng the appellant that his performance faile d to meet the
requirements for the minimally successful performance level for sub -elements 1 A
and 1 B of Responsibility 1, “Technical Competence, ” and sub-element 3 C of
Responsibility 3, “Working Relationships and Communications ” for the most
recent performance period.2 IAF, Tab 5 at 21-22, 52-55. Effective that day, the
agency placed the appellant on a 60 -day performance improvement plan (PIP).
Id. at 17, 54, 56 -59. The memorandum informed the appellant that if he
continued to fail to meet the requirements at the minimally successful level in the
above critical elements at the end of the PIP, his supervisor would have “no
alternative but to recommend that action be taken to initiate [the appellant ’s]
reassignment, demotion, or removal from Federal service. ” Id. at 54. Following
completion of the PIP, the agency demoted the appellant to the WG -9 Machine
Tool Operator p osition, effective August 7, 2016, based on his failure to improve
his performance t o a minimally acceptable level during the PIP period. Id.
at 14-16.
2 The appellant ’s Fiscal Year 2015 performance standards identify each of the
sub-elements of the four Responsibilities as “critical elements. ” IAF, Tab 5 at 21 -22.
The proposal letter, the memorandum placing the ap pellant on the PIP, and t he PIP
itself all identify each Responsibility as a “critical element ” with corresponding
sub-elements. Id. at 17 -18, 52 -57. The administrative judge identified each
sub-element of the Responsibilities as “critical elements. ” IAF, Tab 23, Initial Decision
(ID) at 2. For the sake of conven ience, we have referred to each lettered component of
each Responsibility as a “critical element ” throughout this decision . Regardless of the
terminology used, the PIP specifically informed the appellant that his performance
would be less than minimally successful and he would fail the PIP if he did not meet th e
requirements of Responsibilities 1 A, 1B, and 3C during the PIP period. IAF, Tab 5
at 56-57.
3
¶3 The appellant timely appealed his demotion to the Board. IAF, Tab 1.
After holding the appellant ’s requested hearing, the administrative judge issued
an initial decision finding that th e agency proved by substantial evidence that the
appellant ’s performance remained deficient in Responsibility 3 C during the PIP
period. IAF, Tab 23, Initial Decision (ID) at 1 -10. The administrative judge did
not address Responsibilities 1 A and 1 B. ID a t 10 n.6. Additionally, t he
administrative judge found that the appellant had not shown that the agency
committed harmful procedural error in reaching its decision to demote him. ID
at 10-11.
¶4 The appellant timely filed a petition for review challenging t he
administrative judge ’s decision . Petition for Review (PFR) File, Tab 1. The
agency filed a response in opposition to the petition for review. PFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 In a performance -based action under chapter 43, an agency must establish
each of the following by substantial evidence3: (1) the Office of Personnel
Management (OPM) approved its performance a ppraisal system; (2) the agency
communicated to the appellant the performance standards and critical elements of
his position; (3) the appellant ’s performance stand ards 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
3 Substantial evidence is the “degre e 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 dis agree. ” 5 C.F.R. § 1201.4 (p). Our
reviewing court has described substantial evidence as “more than a mere scintilla . It
means such relevant evidence as a reasonable mind might accept as ad equate to support
a conclusion. ” Leatherbury v. Department of the Army , 524 F.3d 1293 , 1300 (Fed. Cir.
2008) (quoting Bradley v. Veterans Administration , 900 F.2d 233 , 234 (Fed. Cir.
1990) ); see Adamsen v. Department of Agriculture , 116 M.S.P.R. 331 , ¶ 7 (2011) .
Additionally, it “must do more than create a suspicion o f the fact to be established. . . .”
Bradley , 900 F.2d at 234 (quoting National Labor Relations Board v. Columbian
Enameling & Stamping Co. , 306 U.S. 292, 300 (1939 )); see Adamsen , 116 M.S.P.R.
331, ¶ 7 .
4
improve; and (5) the appellant ’s performance remained unacceptable in one or
more of the critical elements for which he was provided an opportunity to
demonstrate acceptable performance. White v. Department of Veteran s Affairs ,
120 M.S.P.R. 405 , ¶ 5 (2013)4; Lee v. Environmental Protection Agency ,
115 M.S.P.R. 533 , ¶ 5 (2010).
¶6 On review, the appellant challenges the administrative judge ’s findings that
the agency cured its invalid performance standards, that it warned him of his
inadequacies during the appraisal period and give him a reasonable opportunity to
improve his performance, and that his performance remained unacceptable in at
least one critical element during the PIP period. PFR File, Tab 1 at 5 -12. The
appellant also a sserts that the agency committed harmful error in executing the
PIP by failing to quantify his individual defect rate during the PIP and by failing
to grant his request for a second PIP. Id. at 5-6, 12.
The agency cured its invalid performance standards by communicating sufficient
information about the appellant ’s performance requirements at the beginning and
throughout the PIP period.
¶7 In his petition for review, the appellant argues that the administrative judge
erred in finding that the agency cured its invalid performance standards during
the PIP. Id. at 5, 12. The administrative judge concluded that the appellant ’s
performance standards were invalid because they required extrapolation more
than one level below5 the “successful ” level, and did not mea ningfully distinguish
4 Although White provides that criterion 3 requires that performance standards be valid
under 5 U.S.C. § 4302 (b)(1), the National Defense Authorization Act for Fiscal
Year 2018 redesignated subsection 4302(b) as subsection 4302(c). Pub. L. No. 115 -91,
§ 1097(d)(1)(A), 131 Stat. 1283, 1619 (2017).
5 Although the administrative judge stated that the invalid standards required
extrapolation more than one level above the “successful ” level, it is clear in context that
she intended to say that the standards required extrapolation more than one level below
the “successful ” level. ID at 6. Any error in this misstatement was inadvertent and
harmless, and did not af fect the outcome of the decision. See Panter v. Department of
the Air Force , 22 M.S.P.R. 281 , 282 (1984) (finding that an adjudicatory er ror that was
5
between “needs improvement ” and “fails ” in a manner that would inform the
appellant of what was required of him to perform at the minimally successful
level. ID at 6; see Hend erson v. National Aeronautics & Space Administration ,
116 M.S.P.R. 96 , ¶ 13 (2011). Although performance standards must set forth the
minimum level of performance necessary to avoid a p erformance -based action in
order to be valid, an agency may cure invalid standards by communicating
sufficient information regarding performance requirements at the beginning of, or
during, a PIP. Henderson , 116 M.S.P.R. 96 , ¶¶ 16, 18.
¶8 In finding that the agency cured the invalid standards, the administrative
judge noted that agency officials communicated to the appellant his performance
deficiencies prior to and during the PIP, including during his midpoint evaluation
in January 2016, and met with him on six occasions during the PIP period to
discuss performance concerns. ID at 6 -8; IAF, Tab 5 at 24 -25; Tab 6 at 11, 14,
31, 54, 59; Tab 21, Hearing Compact Disc (HCD) (testimony of the appellant ’s
supervisor); see Henderson , 116 M.S.P.R. 96 , ¶¶ 16, 18 . As the administrative
judge observed, during the appellant ’s midpoint evaluation and prior to the PIP,
the agency informed him that his performance was “currently needing
improvement ” because he already had received five deficiency reports up to that
point of the appraisal period. IAF, Tab 5 at 61. Additionally, the PIP indicated
that the appellant could receive no more than two additional deficiency reports
during the PIP period to avoid failing the PIP. Id. at 57. Consequently, we find
no error with t he administrative judge ’s conclusion that the agency cured its
facially defective performance standards by clearly communicating the
appellant ’s performance requirements to him at the beginning of, and during, the
PIP period. See Towne v. Department of th e Air Force , 120 M.S.P.R. 239 , ¶ 23
(2013).
not prejudicial to a party ’s substantive rights provided no basis for r eversing an initial
decision) .
6
The agency warned the appellant of the inadequacies of his performance during
the apprai sal period and provided him with a reasonable opportunity to improve
his performance during the PIP.
¶9 The appellant also argues that he was not provided with a reasonable
opportunity to improve his performance during the PIP period, suggesting that his
work was unduly scrutinized and that favorable evidence of his work quality
during the PIP period was “summarily reject[ed] ” by his supervisor. PFR File,
Tab 1 at 5 -7, 10. In determining whether an agency has afforded an employee
with a reasonable opportunit y to improve his performance during a PIP, relevant
factors include the nature of the duties and responsibilities of the employee ’s
position, the performance deficiencies involv ed, and the amount of time that is
sufficient to give the employee an opportuni ty to demonstrate acceptable
performance. Lee, 115 M.S.P.R. 533, ¶ 32.
¶10 As noted above, the appellant ’s supervisor met with him almost weekly
during the PIP period to discuss concerns regarding his performance. IAF, Tab 5
at 24 -25. The appellant ’s supervisor testified that , in addition to the six meetings
during the PIP period , he and several other employees assisted the appellant with
his w ork during the PIP period. HCD (testimony of the appellant ’s supervisor).
See Goodwin v. Department of the Air Force , 75 M. S.P.R. 204 , 208 -09 (1997)
(finding that the agency afforded the appellant a reasona ble opportunity to
improve when it gave her a detailed PIP letter and abundant written feedback
during the PIP, and her supervisor made herself available to provide assistan ce
but the appellant did no t request further assistance). Accordingly, we find that
the appellant has not provided a sufficient basis to disturb the administrative
judge ’s finding that he was afforded a reasonable opportunity to improve during
the PIP.
7
The record does not support the administrative judge ’s finding that the
appellant ’s performance was below minimally successful in Responsibility 3 C
during the PIP period .
¶11 On review, the appellant argues that the agency erred in assessing his
performance during the PIP period by improperly relying on his receipt of 5230Rs
(or “write -ups”) as indicating unacceptable performance, and asserts that the
administrative judge erred by relying on this misc haracterization. PFR File,
Tab 1 at 5 -6, 11 -12; ID at 9 -10.
¶12 As noted above, the appellant ’s performance standards have four
Responsibilities with three sub-elements each. IAF, Tab 5 at 21 -22. The
memorandum placing the appellant on the PIP indicated that his per formance was
below minimally acceptable in three of those Responsibilities : 1A, 1B, and 3C.
Id. at 17 , 56 -57. Because, as mentioned previously , the administrative judge
made no findings regarding whether the appellant’s performance was
unsatisfactory in Responsibilit ies 1A and 1B during the PIP period , we wi ll focus
on Responsibility 3C.
¶13 Responsibi lity 3 C, “Working Relationships and Communications ,” required
that the appellant “complete travelers correctly. ” Id. at 22, 57; HCD (testimony
of the proposing official). Specifically, this Responsibility required that the
appellant receive no more than two “quality defects issued for traveler e rrors ”
during the PIP period . Id. at 57. Travelers are routing documents that travel with
the parts as they move between the diff erent machining shops , and are used to
record measurements and to explain and document the work done on the parts.
HCD (testimony of the appellant ’s supervisor); IAF, Tab 5 at 34 -36; Tab 6
at 32-34. A “traveler error ,” as described in the performance sta ndards and in
testimony by the appellant ’s senior rater and the proposing official, includes
error s in measuring a part or recording information on traveler documents, failing
to stamp a traveler, or inco rrectly requesting to “bypass ” a stage of the machining
8
process. IAF, Tab 5 at 22, 57; HCD (testim ony of the proposing official); IAF,
Tab 6 at 14, 31, 54, 59.
¶14 As the administrative judge noted, when the agency ’s quality control
department inspects a part and determines that it has a defect or was not repaired
to required specifications, a 5230R, or a “write -up” is issued identifying the error
or defect. ID at 9; HCD (testimony of the appellant ’s supervisor) . However, the
appellant ’s supervisor also testified, and the record re flects that , “write -ups” can
be issued for a number of different types of errors , including for traveler errors ,
for machining errors , and even for “point of discovery ” defects , which apparently
relate to preexisting defects in the part discovered by an employee. IAF, Tab 5
at 5-6; Tab 18 at 6; HCD (testimony of the appellant ’s supervisor);
HCD (testimony of the proposing official) .
¶15 In concluding that the agency met its bur den of proof concerning
Responsibility 3 C, the admi nistrative judge cited the appellant ’s supervisor ’s
testimony stating that “Critical Element C of Responsibility 3 relates to
write -ups” and the fact that the appellant received five “5230Rs [write -ups] ”
during the PIP period. ID at 9 -10; HCD (testimony o f the appellant ’s supervisor) .
Yet, during the hearing, the proposing official also t estified that in contrast to
Responsibility 1 A, which dealt with the overall defect rate “regardless of what
defect [was] produced, ” Responsibility 3 C dealt “specifically with travelers being
incorrect .” HCD (testimony of the proposing official) . Continuing , the proposing
official explained that he would “have to look at the specific defe ct[s] ” to see
whether any of the write -ups issued during the rating perio d were “because
something wasn ’t done correctly ” on a traveler, and noted that he only could only
remember one defect received by the appellant during the PIP that “dealt with a
traveler dimension .” Id. There was no elaboration offered on the number of
quality defects issued to the appellant for traveler errors during the PIP period by
any of the agency ’s witnesses. Thus, the agency failed to elicit testimony
9
supporting a finding that the appellant had more than one traveler error during the
PIP period.
¶16 Reviewing the agency ’s documentary evidence similarly is not helpful in
discerning which of the errors that the appellant committed during the PIP perio d
were specifically “traveler errors. ” The submitted documents clearly differentiate
the types of errors the appellant made prior to the PIP , and relate each error to a
specific job Responsibility , but a similar amount of detail was not provided
regarding the errors attributed to the appellant during the PIP period . Compare
IAF, Tab 6 at 11, 14, 31, 54, 59, with IAF, Tab 5 at 17 -20. Comparing the
descriptions on the write -ups included in the record from the pre -PIP period for
known traveler errors , against the provided write -ups from the PIP period
similarly is not elucidating. Compare IAF, Tab 6 at 15, 18, 21, 24, 27 , with IAF,
Tab 5 at 30, 39, 41, 49, 51. Consequently , we find that the agency has failed to
submit sufficient evidence demonstrating that the appellant received two “quality
defe cts issued for traveler errors ” during the PIP period ,6 and thus cannot meet its
burden of proving by substantial evidence that the appellant ’s performance was
below minimally successful in Responsibility 3 C during the PIP period.
Accordingly, we vacate the administrative judge’s finding that the agency prove d
by substantial evidence that the appellant’s performance remained unacceptable
in Responsibility 3C at the end of the PIP period.
6 The PIP language itself is confusing and inconsistent in describing the maximum
number of errors the appellant could commit and still avoid failure of the PIP, stating in
sequential sentences that (1) “any two deficiencies” would result in PIP failure; (2) that
he could receive “no more than two deficiency reports”; and (3) that “any two
combinations” among the different deficiency types woul d result in an unsatisfactory
rating. IAF, Tab 5 at 57. The administrative judge interpreted this language to mean
that if the appellant committed “more than 2” errors during the PIP, his performance
would be considered unsatisfactory. ID at 7 -8. Becau se we ultimately disagree with
the administrative judge’s findings regarding Responsibility 3C and conclude that the
agency failed to provide sufficient evidence that the appellant committed even two
quality defects for traveler errors during the PIP perio d, we need not resolve this
inconsistency at this stage of the proceedings.
10
This appeal must be remanded for the administrative judge to make findings
regarding Responsibilities 1 A and 1 B.
¶17 As noted above, the administrative judge did not make any findings
regarding Responsibilities 1 A and 1 B. ID at 10 n.6. In light of our determination
that the record does not support the administrative judge ’s conclusion that the
appellant ’s performance was below minimally successful in Responsibility 3 C
during the PIP period, and due to the fact that a full hearing was held below and
consequently, the administrative judge would be in the best position to address
these issues in the first instance, we remand this a ppeal for the administrative
judge to make the necessary findings concerning Responsibilities 1 A and 1 B.
On remand, the administrative judge must also permit the parties to provide
evidence and argument concerning whether the appellant’s placement on the PIP
was proper.
¶18 During the pendency of the petition for review in this case, the U.S. Court
of Appeals f or the Federal Circuit (Federal Circuit) held in Santos v. National
Aeronautics & Space Administration , 990 F.3d 1355 , 1360 -61 (Fed. Cir. 2021) ,
that part of the agency’s burden under 5 U.S.C. chapter 43 is to justify the
institution of the PIP by proving by substantial evidence that the employee’s
performance was unacceptable prior to that time. Following the issuance of
Santos , the Board issued an Opinion and Order in Lee v. Department of Veterans
Affairs , 2022 MSPB 11, ¶ 15, which incorporated the changes made by Santos
and set forth the agency’s burden of proof, concluding that in order to defend an
action under chapter 43 the agency must prove the following by substantial
evidence: (1) OPM approved its performance appraisal system and any
significant changes thereto; (2) the a gency communicated to the appellant the
performance standa rds and critical elements of his position; (3) the appellant’s
performance standards are valid under 5 U.S.C. § 4302 (c)(1); (4) the appella nt’s
performance during the appraisal period was unacceptable in one or more critical
elements; (5) the agency warned the appe llant of the inadequacies in his
performance during t he appraisal period and gave him an adequate opportunity to
11
demonstrate acceptable performance; and (6) after an adequate improvement
period, the appellant’s performance remained unacceptable in at least one critical
element.
¶19 The Federal Circuit’s decision in Santos applies to all pending cases,
including the instant appeal , regardless of when the events took place. Lee,
2022 MSPB 11, ¶ 16. Although the record in this appeal contains some evidence
indicating t hat the appellant’s performance leading up to the PIP was
unacceptable, see IAF, Tab 6 at 11, 14, 31, 54, 59 , the parties must be provided
with the opportunity to present argument and additional evidence on the issue, see
Lee, 2022 MSPB 11, ¶¶ 15 -17. On remand, the administrative judge shall accept
argument and evidence on this issue and shall then issue a new initial decision
consistent wi th Santos . See id ., ¶ 17. If the agency makes the additional showing
required under Santos on remand, the administrative judge may incorporate her
prior findings on the other elements of the agency’s case and on the appellant’s
harmful procedural error affirmative defense claim in the remand initial decision.
See id .; ID at 10 -11.
ORDER
¶20 For the reasons discussed above, we remand this case to the Dallas Regional
Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washi ngton, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | VERA_ROGELIO_DA_0432_16_0517_I_1_REMAND_ORDER_1968402.pdf | 2022-10-13 | null | DA-0432 | NP |
4,034 | https://www.mspb.gov/decisions/nonprecedential/TAKADA_JEFFREY_SF_1221_16_0112_W_1_FINAL_ORDER_1968498.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JEFFREY TAKADA,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
SF-1221 -16-0112 -W-1
DATE: October 13, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Amos N. Jones , Esquire, Washington , D.C., for the appellant.
Jennifer Kehe , APO , AP, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only when: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. See title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision , which is now the Board’s final decision . 5 C.F.R.
§ 1201.113 (b)
BACKGROUND
¶2 In this IRA appeal, the appellant alleged that the agency retaliated against
him for engaging in protected equal employment opportunity (EEO) activity, bot h
on his own behalf and on behalf of others, and for disclosing the agency’s
violation of the Privacy Act . Initial Appeal File (IAF), Tabs 1, 5, 11 -12. In his
EEO complaint, the appellant alleged that the agency discriminated against him
on the basis of his national origin when it denied him the opportunity to compete
for an overseas teaching position . IAF, Tab 9 at 15, 30 -32, 63 -82. He alleged
therein that his nonselection involved the agency’s violation of law in hiring local
nationals to teach forei gn languages in its overseas high schools . Id. at 65 -68.
Because the administrative judge determined that the appellant’s EEO complaint
concerned national origin discrimination and did not itself seek to remedy
whistleblowing reprisal, she found that the appellant’s EEO complaint did not
qualify as protected activity under the Whistleblower Protection Enhancement
Act (WPEA), which only extends to claims of reprisal for filing such complaints
seeking to remedy a protected disclosure under 5 U.S.C. § 2302 (b)(8). IAF,
3
Tab 15 at 4 (citing 5 U.S.C. §§ 1221 (a), 2302(b)(9)(A)(i); Mudd v. Department of
Veterans Affairs , 120 M.S.P.R. 365, ¶ 7 (2013)) .
¶3 Among the five issues which the administrative judge determined that the
appellant had raised before the Office of Special Counsel (OSC), IAF, Tabs 5,
11-12, the administrative judge found that the appellant had made a protected
disclosure regarding the agency’s violation of 20 U.S.C. § 901(2)(A) concerning
the hiring of local nationals to teach in overseas locations , and that he
nonfrivolously alleged that the agency failed to select him twice, involving a
promotion and a transfer , IAF, Tab 12 at 5 , Tab 15 at 3-6.2 On the remaining four
issues, the administrative judge found that the appellant failed to make the
requisite nonfrivolous allegation s that the agency took a personnel action or
created a hostile work environment. IAF, Tab 15 at 6-9, Tab 12 at 4 -6.
¶4 After holding a hearing, the administrat ive judge issued an initial decision
dismissing the appeal for lack of jurisdiction. IAF, Tab 28, Initial Decision (ID).
She changed her previous determination that the appellant made a protected
disclosure regarding the agency’s violation of 20 U.S.C. § 901(2)(A) because she
found that her finding reflected too broad a reading of the WPEA . ID at 6.
Because the appellant only raised that issue in his EEO complaint and failed to
identify anyone else to whom he made the disclosure prior to the two personnel
action s at issue, she instead found that it was not a protected disclosure under
5 U.S.C. § 2302 (b)(8), and therefore may not serve as a basis for Board
jurisdiction over his IRA appeal. ID at 6; cf. Graves v. Department of Veterans
Affair s, 123 M.S.P.R. 434 , ¶ 10 (2016) (citing Miller v. Merit Systems Protection
Board , 626 F. App’x 261, 269 (Fed. Cir. 2015) (finding that the Board lacks
jurisdiction over an IRA appeal arising out of disclosures made solely during
2 Under the second of the five issues raised before OSC, the appellant alleged four such
nonselections, but the administrative judge found that because the appellant had not
applied for two of the ca tegories of positions he alleged, the agency could not have
taken the personnel action of selecting, or nonselecting , him for those positions. IAF,
Tab 15 at 6 .
4
grievance pro cedures and not separately disclosed to the agency) . She also found
that because the disclosure in the appellant’s EEO complaint did not attempt to
remedy a violation of section 2302(b)(8), it was protected activity under 5 U.S.C.
§ 2302 (b)(9)(A)(ii), which is not a sourc e of Board jurisdiction over an IRA
appeal. ID at 7 -8; see Graves , 123 M.S.P.R. 434 , ¶ 12; Mudd , 120 M.S.P.R. 365,
¶ 7. The administrative judg e further determined that , even if the appellant made
the requisite nonfrivolous allegation of jurisdiction over a protected disclosure
regarding the two nonselections, because he also failed to show that the
individual with knowledge of his purported disclosure had any input into those
selections, he also failed to show that his purported disclosure was a contributing
factor in either action . ID at 8 -9.
¶5 In his petition for review, the appellant cha llenges the finding that he failed
to nonfrivolously allege that he made a protected disclosure in his EEO
complaint, arguing that the administrative judge improperly reversed her prior
determination that the disclosure at issue was a protected one. Petit ion for
Review (PFR) File, Tab 1 at 4-6. He also argues that the administrative judge
should have found jurisdiction o ver all five of the issues he raised before OSC ,
not just on a portion of the second of the five claims, and he challenges her
finding th at he failed to show that his purported disclosure was a contributing
factor in any of the personnel actions he alleged . Id. at 6. The agency did not
respond to the appellant’s petition for review.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 The Board has jurisd iction over an IRA appeal if the appellant exhausts his
administrative remedies before OSC and makes nonfrivolous allegations that
(1) he made a disclosure described under 5 U.S.C. § 2302 (b)(8) or engaged in
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 t ake or fail to take a personnel action as defined by 5 U.S.C.
5
§ 2302 (a). Linder v. Department of Justice , 122 M.S.P.R. 14 , ¶ 6 (2014). Under
5 U.S.C. § 2302 (b)(9)(B), it is a protected activity to “testify[] for or otherwise
lawfully assist[] any individual in the exercise of any right referred to in
subparagraph (A)(i) or (A)(ii).” Section 2302(b)(9)(A), in turn, covers the
protected activities of “the exercise of any appeal, complaint, or grievance right
granted by any law, rule, or regulation – (i) with regard t o remedying a violation
of paragraph (8); or (ii) other than with regard to remedying a violation of
paragraph (8).”
¶7 As noted above, the Board ’s jurisdiction in an IRA appeal under the WPEA
includes claims arising under 5 U.S.C. § 2302 (b)(9)(A)(i), but does not include
claims arising under 5 U.S.C. § (b)(9)(A)(ii) ; thus, the appellant’s exercise of his
right to file an EEO complaint may only be the subject of an IRA appeal if he
sought therein to remedy a violation of 5 U.S.C. § 2302 (b)(8) . Mudd ,
120 M.S.P.R. 365, ¶ 7. Although the administrative judge initially found that the
appellant made a nonfrivolous allegation that the agency failed to select him in
retaliation for disclosing the agency’s violation of 20 U.S.C. § 901(2)(A)
involving the hiring of local nationals for certain overseas teaching jobs, she also
found that because the appellant’s EEO complaint concerned his allegations of
national origin discrimination and did not in itself seek to remedy whis tleblowing
reprisal, the complaint was not protected activity. IAF, Tab 15 at 5 -6. In her
initial decision , the administrative judge found that the appellant’s disclosure
during the processing of his EEO complaint that the agency violated 20 U.S.C.
§ 901(2)(A) was protected activity under 5 U.S.C. § 2302 (b)(9)(A)(ii), which is
not a source of Board jurisdiction over an IRA a ppeal. ID at 6 -9.
¶8 Our review of the appellant’ s EEO complaint supports this finding.
Although the appellant cited the agency’s purported employment of foreign
nationals in violation of the statute cited above , he alleged that national origin
discrimina tion, and not whistleblowing reprisal , w as the reason for his
nonselection . IAF, Tab 9 at 69-70, 74-77. Thus, we agree with the
6
administrative judge that the appellant did not seek to remedy a violation of
5 U.S.C. § 2302 (b)(8) in his EEO complaint , and therefore , he failed to establish
jurisdiction over his IRA appeal.
¶9 We also agree with the administrative judge that the appellant failed to
demonstrate that this purported disclosure was a contributing factor in his
nonselections. ID at 8 -9. The administrative judge found that the person who the
appellant identified as responsible for not selecting him for the positions
“unequivocally testified that he does n ot make personnel recommendations ,” and
the agency’s Superintendent for Japan Schools during that time offered
corroborative testimony consistent with that assertion regarding the promotion at
issue . Id. As to the transfer at issue, t he administrative ju dge found that all the
agency’s witnesses consistent ly testified that such selections were handled at the
headquarters level, and therefore not by the person whom the appellant alleged
engaged in reprisal by not selecting him . ID at 9. Although the appel lant cites
some hard bargaining on the agency’s behalf in the settling of his EEO complaint,
he fails to show that the agency failed to select him in reprisal for that action.
PFR File, Tab 1 at 5, 7-9. The Board must defer to an administrative judge ’s
credibility determinations when they are based, explicitly or implicitly, on
observ ing the demeanor of witnesses testifying at a hearing; the Board may
overturn such determinations only when it has “sufficiently sound ” reasons for
doing so. Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) .
The appellant identifies no such reasons in his petition for review.
¶10 The app ellant also alleged that the agency failed to select him in retaliation
for providing an affidavit in connection with the EEO complaint of a colleague.
Such activity is protected under 5 U.S.C. § 2302(b)(9)(B), over which the Board
has jurisdiction in an IRA appeal. Linder , 122 M.S.P.R. 14 , ¶ 6. However, the
administrativ e judge found that the alleged nonselections did not occur until after
the agency learned of th is affidavit . ID at 4. We agree. The record reflects that
the agency was provided with the appellant’s affidavit on June 23, 2015 , IAF,
7
Tab 13 at 9-14, but the nonselections o ccurred before the end of 2014, ID at 4 -5.
Thus, the statements contained in the appellant’s affidavit, or the affidavit itself,
could not have been a contributing factor in the nonselections.
¶11 Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following 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 eac h of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information .
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the no tice 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
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit you r petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono repres entation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit . The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your dis crimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representat ive receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
9
discrimination based on race, color, religion, sex, nat ional origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your rep resentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EE OC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
10
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2 302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Cir cuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants b efore the Federal Circuit. The
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 whi stleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective website s, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | TAKADA_JEFFREY_SF_1221_16_0112_W_1_FINAL_ORDER_1968498.pdf | 2022-10-13 | null | SF-1221 | NP |
4,035 | https://www.mspb.gov/decisions/nonprecedential/LITTON_MATTHEW_C_DC_0752_14_1110_I_2_FINAL_ORDER_1968507.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MATTHEW C. LITTON,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
DC-0752 -14-1110 -I-2
DATE: October 13, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kristin D. Alden , Esquire and Wynter P. Allen , Esquire, Washington, D.C.,
for the appellant.
Chad Y. Tang , Esquire and Marisa C. Ridi , Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
Member Leavitt recused himself an d
did not participate in the adjudication of this appeal.
FINAL ORDER
¶1 The agency has filed a petition for review and the appellant has filed a cross
petition for review of the initial decision, which reversed the agency’s removal
1A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
action . 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 app lication 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 affecte d 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 agency has not
established any basis under section 1201.115 for granting its petition for review.
Therefore , we DENY its petition for review. Except as expressly MODIFIED to
supplement the administrative judge’s finding that the agency did not show that
its disability -related inquiries were job -related and consistent with business
necessity , we AFFIRM the init ial decision. Given our decision to affirm the
initial decision, we FIND that we need not address the arguments set forth in the
appellant’s cross petition for review. However, we FORWARD the appellant’s
claim that he was indefinitely suspended without p ay to the regional office for
docketing as a separate appeal .
BACKGROUND
¶2 The agency’s Federal Bureau of Investigation (FBI) removed the appellant
from his Special Agent position based on two charges: (1) intentional failure to
disclose on his Standard For m 93 (SF -93) (Report of Medical History) on
June 13, 2007, and January 13, 2010, that he was being treated by a doctor and
using steroids and human growth hormone (HGH), in violation of FBI Offense
Code 2.1 (False/Misleading Information – Employment/Securi ty Documents); and
(2) lack of candor under oath in statements to the Department of Justice Office of
3
Inspector General (OIG) regarding the reason he sought and received treatment
from the doctor, in violation of FBI Offense Code 2.6 (Lack of Candor/Lying –
Under Oath). Litton v. Department of Justice , MSPB Docket No. DC-0752 -14-
1110 -I-2, Appeal File (I -2 AF), Tab 14 at 98 -124. The SF -93s asked for a
statement of his present health and medications currently used. Litton v.
Department of Justice , MSPB Doc ket No. DC -0752 -14-1110 -I-1, Initial Appeal
File (IAF), Tab 11 at 79, 84. The appellant described his present health as
excellent and listed “none” or left blank the section for his current medications.
Id. at 79, 84. The SF -93s also asked if he had con sulted or been treated by
clinics, physicians, healers, or other practitioners within the past 5 years for other
than minor illnesses. Id. at 80, 85. The appellant did not list the treatment for
which he was prescribed steroids and HGH on the forms. Id.
¶3 On appeal to the Board, the appellant asserted that the agency could not
prove its charges by preponderant evidence, the action was based on disability
discrimination, reprisal for equal employment opportunity (EEO) activity, reprisal
for whistleblowing, reprisal for exercising his right to petition Congress in
violation of 5 U.S.C. § 7211 , and a due process violation, and that the penalty of
removal was not reasonable. I -2 AF, Tab 27 at 4 -5, Tab 40 at 3.
¶4 After a hearing, the administrative judge issued an initial decision that
reversed the removal action. I -2 AF, Tab 72, Initial Decision (ID) at 2, 28. The
administrative judge found that the agency did not prove charge (1) because it
was based o n disability discrimination. ID at 4. In this regard, she found that,
although the appellant admitted that he intentionally omitted from the SF -93s the
fact that he was taking the medications in question and being treated by a doctor
in connection with t hose medications, and did so because he considered the
information to be private medical information that did not affect his job
performance, the charge could not be sustained because it constituted an overly
broad disability -related inquiry prohibited und er the Americans with Disabilities
Act Amendments Act (ADAAA) and the Rehabilitation Act of 1973. ID at 6 -7.
4
The administrative judge found that, as a law enforcement officer, the appellant
was subject to physical requirements and medical standards, incl uding periodic
medical examinations. ID at 7. Nevertheless, she found that the agency’s
inquiries were not narrowly tailored to be job -related and consistent with a
business necessity, and were not, in fact, tailored at all. ID at 11. The
administrativ e judge held that, although the appellant’s position required arduous
physical duties, and his inability to perform those duties because of a physical
impairment or the side effects of medication could affect the lives of his
teammates and the public, no q uestions or concerns were raised by anyone about
his fitness to perform, he was in excellent physical condition and performing in
an excellent manner, and the agency’s disability -related inquiries were designed
to elicit any and all medical conditions whet her or not they were job -related,
contrary to its own policy, which acknowledged that inquiries could not exceed
the scope or relevance of the impact of the condition on the employee’s ability to
perform. Id.
¶5 The administrative judge also found that the a gency did not prove
charge (2), which involved his statement under oath to the OIG that he initially
sought treatment from the doctor who prescribed him steroids and HGH solely to
address a sterility problem, rather than a decrease in strength and enduranc e.
ID at 12 -13. The administrative judge found credible the appellant’s testimony
that he and his spouse wanted to start a family, that she had been trying to
become pregnant since 2001 without success, and that he was attempting to
address a pituitary c ondition that caused him to be sterile before and during the
time that he was treated by the doctor. ID at 18. The administrative judge held
that the appellant’s testimony was consistent with his statements to the OIG, the
testimony of his wife, and medi cal records reflecting his efforts to father a child.
Id. She further found credible as uncontroverted and plausible the appellant’s
testimony that he did not write the information on the doctor’s practice forms
reflecting symptoms of decreased strength and endurance; rather, he answered a
5
series of questions posed by the doctor or his staff and had no control over what
that person wrote down on the forms. ID at 13 -14, 18. The administrative judge
found that the information the appellant provided was “f iltered through” the
doctor, who likely focused on describing the symptoms the appellant had of his
endocrine and pituitary conditions that would legitimately fit within a diagnosis
covered by his health insurance. ID at 19-20. In fact, the administrativ e judge
noted that the FBI’s Chief Medical Officer confirmed that the medications at
issue were consistent with treating a damaged pituitary gland that can cause a
decrease in hormone production, and with hormone replacement therapy. ID at 9,
20 n.17. Sh e further noted that the appellant’s demeanor while testifying was
genuine and consistent with his OIG interview and written reply. ID at 20.
¶6 Finally, the administrative judge found that the appellant proved disability
discrimination based on the agency’s disability -related inquiry, but did not prove
disability discrimination based on a disparate treatment theory, retaliation for
EEO activity, or a violation of his right to petition Congress. ID at 20 -28. The
administrative judge found that the Board lac ked jurisdiction over claims of
reprisal for whistleblowing made by FBI agents, and that she did not need to
address the appellant’s due process claim given her reversal of the removal action
on the merits. ID at 20 -21. She ordered the agency to provide the appellant with
interim relief if it filed a petition for review. ID at 29.
¶7 The agency has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The appellant has filed a motion to dismiss the
petition for review for failure to provide interim relief, a cross petition for
review, and a response to the agency’s petition for review. PFR File , Tabs 4,
20-21. The agency has filed a reply to the appellant’s response to the petition for
review and a response to the appellant’s cross petition for review . PFR File ,
6
Tabs 31-32. The agency also has filed a motion for leave to file an additional
pleading.2 PFR File , Tab 36.
ANALYSIS
We need not decide whether the agency complied with the interim relief order .
¶8 The appellant has filed a motion to dismiss the agency’s petition for review
for failure to provide interim relief. PFR File, Tab 4 at 4. The appellant asserts
that th e agency did not make a determination that his return to duty would be
unduly disruptive to the work environment, submitted no affidavit, sworn
statement, letter, or Standard Form 50 with its petition for review , and did not
return him to work or restore h is pay and benefits. Id. at 5-9. The appellant also
filed an appeal form in which he assert ed that the agency had indefinitely
suspended him without pay when it failed to comply with the interim relief order.
PFR File, Tabs 11, 13. We forward the appea l form to the regional office for
docketing as a separate appeal of an alleged indefinite suspension.
¶9 Having considered the agency’s arguments regarding the merits of this case,
we find, as set forth below, that they do not establish error in the initial d ecision;
therefore, we need not address the appellant’s assertions regarding interim relief.
See Gill v. Department of Defense , 92 M.S.P.R. 23 , ¶ 25 (2002); Anderson v. U.S.
Postal Service , 64 M.S.P.R. 233, 237 -38 (1994). If a dispute arises concerning
2 We deny the agency’s motion for leave to file an additional pleading. PFR File,
Tab 36. The agency asserts that the Equal Employment Opportunity Commissi on
(EEOC) has issued three decisions since the record closed that “found that the same
medical questions at issue in the Appellant’s case did not constitute a violation of the
EEO laws, including the Rehabilitation Act.” Id. at 5. When, as here, the reco rd has
closed on review, the Board will not accept any additional evidence or argument unless
the party seeking to submit the new evidence or argument shows it is new and material.
Stoglin v. Department of the Air Force , 123 M.S.P.R. 163 , ¶ 5 n.3 (2015), aff’d per
curiam , 640 F. App’x 864 (Fed. Cir. 2016); 5 C.F.R . § 1201.114 (k). To be material, the
agency’s submission must be of sufficient weight to warrant a different outcome. Russo
v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980). The agency does not claim
that the issue resolved by the EEOC was whether its SF -93 was job -related and
consistent with business necessity. Therefore, the agency has not shown that the EEOC
decisions are material to our d etermination here and we deny the agency’s motion.
7
the pa y 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. See Fletcher v. Department of Agriculture ,
63 M.S.P.R. 165, 170 n.4 (1994); see also 5 C.F.R. § 1201.116 (g).
The agency’s petition f or review is denied .
The administrative judge correctly found that the agency did not prove the
intentional failure to disclose charge and that the agency violated the
Rehabilitation Act.
¶10 The agency asserts that the administrative judge erred when she held that
the questions on the SF -93 were overbroad. PFR File, Tab 1 at 24. In support of
this argument, the agency contends that a Federal employee does not have the
right to make false statements if the questions are improper; rather, if he chooses
to answ er, he is obligated to answer truthfully. Id. at 26 -27. In support of these
assertions, the agency relies on Lachance v. Erickson , 522 U.S. 262 , 265 -68
(1998); Bryson v. United States , 396 U.S. 64 , 72 (1969); Delapenia v. Merit
Systems Protection Board , 409 F. App’x 332 (Fed. Cir. 2010); and a
nonprecedential Board final order.3 Id. Those cases, however, are
distinguishable and do not warrant a different result.4
3 Nonprecedential orders are not binding on the Board in any future appeals, except
when it is determined that they have a preclusive effect on parties under the doctrines of
res judicata, collateral estop pel, judicial estoppel, or law of the case. 5 C.F.R.
§ 1201.117 (c)(2). Thus, such orders have no precedential value and the Board is not
required to follow or distinguish them. Id.
4 The agency also contends that the appellant’s discrimination claim cannot be raised in
this appeal because he challenged the lawfulness of the SF -93 in a 2012 EEO complaint
before filing this appeal on September 19, 2014, and the EEOC found that the 2012
complaint was untimely filed. PFR File, Tab 1 at 25. We disagree. An appellant who
has been subjected to an action appealable to the Board may either file a timely formal
EEO complaint with the agency regarding the action or file an appeal with the Boar d
within 30 days of the appealable action. Gomez -Burgos v. Department of Defense ,
79 M.S.P.R. 245 , ¶ 8 (1998); 5 C.F.R. § 1201.154 (a); 29 C.F.R. § 1614.302 (b);
see 5 U.S.C. § 7702 (a)(1)-(2). Here, the 2012 EEO complaint did not involve the
appellant’s 2014 removal. See Litton v. Department of Justice , EEOC Appeal
No. 0120131279, 2013 WL 3865004 (July 17, 2013). Thus, the appellant made no
8
¶11 In Erickson , 522 U.S. at 264, the Court identified the issue as whether the
Due Process Clause or the Civil Service Reform Act of 1978 precluded a Federal
agency from disciplining an employee for making false statements to the agency
regarding alleged employment -related misconduct. The Court held that those
provisions did not preclude discipline, specifically finding that a mean ingful
opportunity to be heard does not include a right to make false statements with
respect to the charged misconduct. Id. at 264 -66. Erickson did not, however,
involve a disability -related inquiry that violated the Rehabilitation Act. See
Evans v. Department of Homeland Security , 107 M.S.P.R. 484 , ¶ 22 (2007). In
Bryson , 396 U.S. at 65, 68 -69, the Court held that a criminal conviction for
having falsely denied in an affidavit an affiliation with the Communist Party did
not depend upon the constitutional validity of the statute requiring the affidavit.
The Court, therefore, held that the invalidity of a statute wou ld not provide a
defense to a criminal conviction because a citizen does not have a “privilege to
answer fraudulently a question that the Government should not have asked.”
Id. at 72. As in Erickson , the Court did not address the effect of an improper
disability -related inquiry on a disciplinary charge brought against a Federal
employee. See Evans , 107 M.S.P.R. 484, ¶ 22. Moreover, the Court’s holding in
Bryson was grounded in its finding that there was a statutory basis for the inquiry.
396 U.S. at 71. There is no statutory basis, however, for an unlawful
disability -related inquiry. Although the U.S. Court of Appeal s for the Federal
Circuit in Delapenia , 409 F. App’x at 335, relied on language from Erickson in
finding that the appellant did not make a nonfrivolous allegation of an
involuntary resignation, it too did not address the effect of an improper
disability -related inquiry on a disciplinary action.
¶12 We further find that the agency has not provided a basis for disturbing the
administrative judge’s determination, which we modify and supplement herein,
election to challenge his removal in an EE O complaint, and he is not precluded from
raising his discrimination claim in this case.
9
that the agency did not establish that its disability -related i nquiries were
job-related and consistent with business necessity, and thus did not prove its
charge and discriminated against the appellant based on a disability.5 ID at 4 -12,
21. Significant restrictions are imposed on an employer’s freedom to make
medi cal inquiries of its employees. Archerda v. Department of Defense ,
121 M.S.P.R. 314 , ¶ 29 (2014) . Under 42 U.S.C. § 12112 (d)(4)(A), an employer
“shall not require a medical examination and shall not make inquiries of an
employee as to whether such employee is an individual with a disability or as t o
the nature or severity of the disability, unless such examination or inquiry is
shown to be job -related and consistent with business necessity.” The Equal
Employment Opportunity Commission ( EEOC ) has issued regulations
implementing this provision. See 29 C.F.R. §§ 1630.13 (b), 1630.14(c).
¶13 Generally, a disability -related inquiry or medical examination may be
job-related and consistent with business necessity if an employer has a reasona ble
belief, based on objective evidence, that an employee’s ability to perform
essential job functions will be impaired by a medical condition , or that an
employee will pose a direct threat due to a medical condition. Archerda ,
121 M.S.P.R. 314 , ¶ 30. A business necessity must be based on more than mere
expediency. Hanna P. v. Coats , 916 F.3d 327 , 358 (4th Cir. 2019 ). A direct
threat means a significant risk of substantial harm to the health or safety of the
individual or others that cannot be eliminated or reduced by re asonable
accommodation. 29 C.F.R. § 1630.2 (r). The employer has the burden of showing
that its disability -related inquiries are job -related and consistent with business
necessity. Arch erda , 121 M.S.P.R. 314 , ¶ 31.
5 As a Federal employee, the appellant’s disability discrimination claim arises under the
Rehabilitation Act of 1973. However, the standards under the Americans with
Disabilities Act (ADA), as amended by the ADAAA, have been incorporated by
reference into the Rehabilitation Act, and the Board applies them to determine whether
there has been a Rehabilitation Act violation. 29 U.S.C. § 791(f); Miller v. Department
of the Army , 121 M.S.P.R. 189 , ¶ 13 n.3 (2014).
10
¶14 Here, the agency’s inquiries were not due to any reasonable belief, based on
objective evidence, that the appellant’s ability to perform his essential job
functions was impaired by a medical condition or that he posed a direct threat due
to a medical condi tion. ID at 11. Rather, the inquiries were part of a general
policy applying to all similarly situated employees. See Conroy v. New York
State Department of Correctional Services , 333 F.3d 88 , 97-98, 100 -01 (2d Cir.
2003) (distinguishing between disability -related inquiries to all employees arising
from generally applicable policies, and such inquiries directed at an individual
employee based on particular facts relating to that employee). The EEOC’s
Enforcement Guidance appears to permit such generally applicable policies and
inquiries under certain circumstances. For example, an employer generally may
not ask all employees what prescription me dications they are taking. Equal
Employment Opportunity Commission, Enforcement Guidance:
Disability -Related Inquiries and Medical Examinations of Employees under the
Americans with Disabilities Act (ADA) , Notice 915.002, Question 8 , 2000 WL
33407181, at *9 (July 27, 2000) (Enforcement Guidance). Nevertheless, relevant
provisions of the Enforcement Guidance provide as follows:
Asking all employees about their use of prescription medications is
not job -related and consistent with business necessity. In l imited
circumstances, however, certain employers may be able to
demonstrate that it is job-related and consistent with business
necessity to require employees in positions affecting public safety to
report when they are taking medication that may affect th eir ability
to perform essential functions. Under these limited circumstances,
an employer must be able to demonstrate that an employee’s
inability or impaired ability to perform essential functions will
result in a direct threat . For example, a police d epartment could
require armed officers to report when they are taking medications
that may affect their ability to use a firearm or to perform other
essential functions of their job. Similarly, an airline could require its
pilots to report when they are t aking any medications that may
impair their ability to fly. A fire department, however, could not
require fire department employees who perform only administrative
duties to report their use of medications because it is unlikely that it
11
could show that th ese employees would pose a direct threat as a
result of their inability or impaired ability to perform their essential
job functions.
Id. (italics and bold in original). Similarly, the Enforcement Guidance provides
that employers may require periodic medi cal examinations of employees in
positions affecting public safety, such as police officers and firefighters, in
“limited circumstances” if they are “narrowly tailored to address specific
job-related concerns.” Enforcement Guidance, Question 18, 2000 WL 3 3407181,
at *14.
¶15 The relevant questions on the SF -93 asked the appellant to describe his
“Present Health” and list his “Current Medication[s],” as well as to disclose
whether he had consulted with or been treated by clinics, physicians, healers, or
other p ractitioners within the past 5 years for other than minor illnesses. IAF,
Tab 11 at 79 -80, 84 -85. Asking an employee whether he is taking prescription
drugs or medication or questions seeking information about illnesses, mental
conditions, or other impai rments an employee has or had in the past trigger the
protections of 42 U.S.C. § 12112 (d)(4)(A) and its implementing regulations. Lee
v. City of Columbus , 636 F.3d 245 , 254 (6th Cir. 2011); see Miller v. Whirlpool
Corp. , 807 F. Supp. 2d 684 , 685 -87 (N.D. Ohio 2011). The administrative judge
found , after considering the testimony of the FBI’s Chief Medical Officer, that
the agency ’s inquiries were not narrowly tailored to be job -related and consistent
with business necessity; in fact, she found that they w ere not tailored at all and
were contrary to the agency’s Fitness -for-Duty Program Policy Implementation
Guide, which provides that “[n]o inquiries or examinations concerning an
employee’s medical condition or physical limitation may exceed the scope or
relevance of the impact of said condition or limitation on the employee’s ability,
with or without reasonable accommodation, to perform the essential functions of
his/her position.” ID at 7, 9-11; I -2 AF, Tab 20 at 33 . The administrative judge
found that t he agency required the appellant to disclose all doctors, illnesses, and
12
medications whether or not they related to his ability to perform the functions of
his position, and that its inquiries were not tailored to determine whether he was
using a drug that may affect his ability to perform his job. ID at 11.
¶16 Under these circumstances, we agree with the administrative judge that the
agency did not show that the broad inquiries at issue in this case were job -related
and consistent with business necessity. See Roe v. Cheyenne Mountain
Conference Resort , Inc., 124 F.3d 1221 , 1226 -27, 1230 (10th Cir. 1997) (finding
that a policy requiring employees to report all drugs present within their bod ies
violated the ADA in the absence of a showing that the policy was job -related and
consistent with business necessity); Port Authority Police Benevolent
Association , Inc., v. Port Authority of New York & New Je rsey, 283 F. Supp.
3d 72, 84 -85 (S.D.N.Y. 2017) (holding that a health questionnaire of police
officers w as not narrowly tailored to address specific job -related concerns whe n it
was intended to be comprehensive and reveal a panoply of conditions, including
those having no relevan ce to an officer’s ability to perform the job); Stahly v.
South Bend Public Transp. Corp. , No. 3:1 0-CV-257-JVB, 2013 WL 55830,
at *6-7 (N.D. Ind. 201 3) (holding that a policy requiring the disclosure of all
medications violated 42 U.S.C. § 12112 (d)(4)(A) when the agency provided no
evidence of business necessity and merely set forth the purpo se of the policy
without proving , with evidence , that the policy was necessary to achieve the
purpose); Scott v. Napolitano , 717 F. Supp. 2d 1071 , 1076, 1084 -85 (S.D. Cal.
2010) (finding that the Federal Protective Service’s disability -related inquiries to
a Special Agent , including asking him to list all medications taken and whether he
had consulted with or been treated by clinics, physicians, healers, or other
practitione rs for other than minor illnesses, were not narrowly tailored to assess
whether he could perform the essential functions of his job). Therefore, the
administrative judge correctly found that the agency did not prove this charge and
violated the Rehabilita tion Act. See Evans , 107 M.S.P.R. 484 , ¶ 23 (holding that
an agency’s pre -offer -of–employment disability -related inqui ry that was
13
prohibited by the ADA cannot form the basis of a charge of falsification); cf.
Downs v. Massachusetts Bay Transportation Authority , 13 F. Supp. 2d 130 , 140
(D. Ma ss. 1998) (finding that an employer that violates its employees’ rights by
asking impermissible questions ought not to be able to base adverse employment
decisions on the resulting answers, to which it was not entitled in the first place,
and which would n ot have been given had the employer not overstepped the
bounds set by the ADA); Bozeman v. U.S. Postal Service , EEOC Appeal
No. 0120120923, 2013 WL 1933269 (May 3, 2013) (holding that an applicant’s
answers to an improper disability -related inquiry, even i f false, cannot serve as a
basis for the applicant’s elimination from the applicant pool) .
¶17 The agency asserts that Evans is distinguishable because it involved
questions asked before the agency made a job offer, which are more restricted
than those that ma y be asked at later stages of hiring and employment. PFR File,
Tab 1 at 27. The agency further contends that it presented “substantial evidence”
that the treatment and medications at issue here were relevant to the appellant ’s
essential job duties and safety concerns. Id. at 28 -29. The agency cites to
Kirkish v. Mesa Imports , No. 08 -CV-1965, 2010 WL 364183, at *5 -6 (D. Ariz.
Feb. 1, 2010), aff’d , 442 F. App’x 260 (9th Cir. 2011), for the principle that an
employer may make medical inquiries regarding pain medications to an employee
who drove automobiles as part of his duties because such medications have side
effects, such as drowsiness, that could be relevant to the employee’s performance,
and that the business necessity st andard can, therefore, be met even before an
employee’s work performance declines. Id. at 30.
¶18 Although the administrative judge relied upon Evans , a case involving a
preemployment disability -related inquiry, in finding that the agency’s
postappointment in quiries were prohibited by the ADA and the charge could not
be sustained , ID at 12, the rationale underlying the analysis in Evans ,
107 M.S.P.R. 484, ¶¶ 17-23, applies regardless of whether the improper
disability -related inquiry occurs pre or postemployment. In either case, an
14
agency ought not be able to base an adverse action on answers to which it was not
entitled in t he first place, and in a situation where false responses are triggered by
an agency’s own improper actions. The agency contends that the treatment and
medications the appellant received were relevant to his job duties and the
agency’s safety concerns, but this contention does not show error in the ultimate
determination that the disability -related inquiries were overbroad and legally
prohibited. The court in Kirkish , No. 08 -CV-1965, 2010 WL 364183, at *3, 6,
concluded that the employer had good cause to i nquire into whether Mr. Kirkish
was capable of driving safely, which was an essential function of his position,
because he had openly discussed his nerve disorder and use of prescription pain
medications, which have possible side effects including drowsine ss, with
coworkers and supervisors, and a supervisor believed that there had been a
“distinct change” in his cognitive abilities. Here, by contrast, the agency’s
inquiries were not due to any reasonable belief, based on objective evidence, that
the appell ant’s ability to perform his essential job functions was impaired by a
medical condition or that he posed a direct threat due to a medical condition.
Thus, Kirkish is distinguishable from this appeal.
¶19 In reaching our determination, we do not hold that a l aw enforcement
agency cannot make inquiries regarding an employee’s health. Rather, we hold
that such inquiries must comport with the requirement of 42 U.S.C.
§ 12112 (d)(4)(A) that any disability -related inquiries be job -related and
consistent with business necessity. See 29 C.F.R. § 1630.14 (c). The agency
simply did not meet its burden in this case. See S cott, 717 F. Supp. 2d at 1085.
The administrative judge correctly found that the agency did not prove the
lack of candor charge.
¶20 The agency further asserts that it proved the lack of candor specification
regarding the reason why the appellant sought trea tment from the doctor, and that
the administrative judge ignored material and prior inconsistent statements by the
appellant, made factually inaccurate and speculative conclusions, failed to
15
address testimony by witnesses who contradicted the appellant, an d accepted an
implausible explanation offered by the appellant. PFR File, Tab 1 at 12 -24.
¶21 Although the agency contends that the appellant made an inconsistent
statement when he admitted that he lied on his SF -93 by not disclosing that his
treatment involv ed steroids and HGH, and made other allegedly contradictory
statements, id. at 13 -15, we find that any such inconsistencies do not warrant a
different result in this case . The appellant indicated that he did not disclose the
treatment and medications b ecause he considered such problems as his sterility
and low testosterone to be embarrassing, private medical information that did not
affect his job performance. ID at 5 -6, 13. As set forth above , the administrative
judge correctly found that the disability -related inquiry violated the
Rehabilitation Act. Such inquiries are problematic because they not only violate
the Rehabilitation Act, but also set up a situation that is likely to “trap” a disabled
employee into mak ing false statements that a non disabled employee would have
no incentive to make. Downs , 13 F. Supp. 2d at 140-41. In any event, the Board
is not required to discredit a witness’ s testimony on all issues once that testimony
is discredited on one or more issues. Pedersen v. Department of Tran sportation ,
9 M.S.P.R. 195 , 198 (1981). Here, the appellant’s failure to disclose certain
information on his SF -93, and any other possible inco nsistencies raised by the
agency on review, are not a basis for discrediting his testimony, found credible by
the administrative judge, that he initially sought treatment from the doctor who
prescribed him steroids and HGH solely to address a sterility pro blem. ID
at 12-20. The Board must defer to an administrative judge’s credibility
determinations when they are based, e xplicitly or implicitly, on observing the
demeanor of witnesses testifying at a hearing; 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
admini strative judge found the appellant’s testimony credible based in part on his
16
demeanor, which she found to be “genuine.” ID at 20. The agency has not set
forth sufficiently sound reasons for overturning those credibility determinations.
¶22 The agency also co ntends that the administrative judge improperly
speculated that the appellant’s doctor did not discuss fertility or sterility in his
treatment notes because he wanted to “mischaracterize the true situation to ensure
the health insurance company would pay t he bills.” PFR File, Tab 1 at 16; ID
at 18-19. Nevertheless, this finding is consistent with the appellant’s testimony
that his doctor asked him questions regarding his strength and energy for
purposes of diagnosing his pituitary and endocrine conditions and providing a
course of treatment that would be consistent with the insurance coverage offered.
Hearing Transcript (Jan. 12, 2017) at 172, 176, 182 -83; ID at 19. To the extent
that the agency asserts that the administrative judge ignored the testimony of a
witness, PFR File, Tab 1 at 20 -21, a failure to mention in the initial decision this
testimony or other evidence does not mean that she did not consider it, and is not
a basis to overturn her well -reasoned findings in this case, see Sabio v.
Departme nt of Veterans Affairs , 124 M.S.P.R. 161 , ¶ 40 (2017).
¶23 In sum, the agency has not provided a basis for overturning the
administrative judge’s determination that the agency did not prove its lack of
candor charge because it did not prove by preponderant evidence that the
appellant gave incorrect or incomplete i nformation when he stated that he initially
sought treatment solely to address his sterility problem.
The administrative judge did not fail to address a specification under the
lack of candor charge.
¶24 The agency contends that the administrative judge failed to address a
specification supporting the lack of candor charge, namely, a statement the
appellant made under oath to the OIG that he was not concerned that the FBI
would have disapproved if he had disclosed the treatment and medications on his
SF-93s. P FR File, Tab 1 at 4, 7, 9. The agency contends that the appellant was,
in fact, concerned that the agency would have disapproved of his actions. Id.
17
at 9-11. We disagree with the agency’s assertion that the administrative judge
failed to address such a specification underlying the lack of candor charge.
¶25 In its proposal notice, the agency asserted in support of the lack of candor
charge that the OIG “also found that you were not fully forthcoming in your
statements to the OIG under oath when you said you sought treatment from Dr. #1
solely to address a sterility problem.” I -2 AF, Tab 14 at 105. The administrative
judge addressed that specification, finding that the agency did not prove it by
preponderant evidence. ID at 12 -20. After addressing some of the evidence
related to that specification, the proposal notice provided as follows:
You also stated that you did not report your use of HGH and
testosterone because ‘it’s embarrassing to have to talk about low
testosterone, low sperm count. It’s just n ot relevant to my job’ and
‘it’s not information that I’m comfortable disclosing.’ I do not credit
this statement. I find that you lied, and that you did not disclose
your use of HGH and testosterone because you were concerned that
the FBI would not appr ove of your use of testosterone and HGH.
I-2 AF, Tab 14 at 105 -06. To the extent that this language constitutes a separate
specification, and not simply additional background information relating to the
specification adjudicated by the administrative ju dge, it does not allege that the
appellant untruthfully asserted that he was not concerned that the agency would
disapprove of his use of HGH and testosterone. Rather, it appears to allege that
he provided an untruthful reason as to why he did not disclos e that information to
the agency.
¶26 In any event, the administrative judge identified the issues in this case,
including a description of the lack of candor charge, and found that that charge
only involved “the reason [the appellant] sought and received trea tment from the
doctor.” I -2 AF, Tab 40 at 2. The administrative judge notified the parties that ,
absent a showing of good cause, they would be bound by the issues described in
her summary of the telephonic prehearing conference, and she would not conside r
any other issues in the appeal. Id. at 9. She further notified them that, in the
absence of a timely notice that her summary was inaccurate, the summary would
18
be final and would not be modified without a showing of good cause. Id. at 11.
Although t he agency filed submissions addressing rulings on exhibits and
witnesses, it did not object to the description of the lack of candor charge.
I-2 AF, Tabs 45, 47. Thus, it may not object on review to that description, and
any additional specification under that charge is not properly before the Board.
See Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365 , ¶ 14 (2016); Crowe v.
Smal l Business Administration , 53 M.S.P.R. 631 , 634 -35 (1992) (noting that an
issue is not properly before the Board when it is not included in the memorandum
summarizing the prehearing conference, which states that no other issues will be
considered unless either party objects to the exclusion of that issue); see a lso
Taylor v. Department of the Army , 44 M.S.P.R. 471 , 474 (1990) (holding that a
party’s stipulation to a narrowing of the charges, wit hout objecting to or seeking
clarification of the stipulation, may not be challenged on review).
We need not address the appellant’s cross petition for review .
¶27 The appellant asserts in his cross petition for review that the administrative
judge did not address his constitutional due process claim, and that this is an
additional basis upon which to reverse the removal action. PFR File, Tab 20 at 4.
¶28 The administrative judge found that, in light of her decision to reverse the
removal action on the merits, she did not need to address the appellant’s due
process claim. ID at 21. We agree with the administrative judge. Given our
disposition of this case, we need not address the appellant’s constitutional due
process claims. See Hathaway v. Merit Systems Pr otection Board , 981 F.2d 1237 ,
1243 n.8 (Fed. Cir. 1992) (recognizing the rule of prudence that courts should
not, unless compelled, decide cons titutional questions); Van Prichard v.
Department of Defense , 117 M.S.P.R. 88 , ¶ 25 (2011), aff’d, 484 F. App’x 489
(Fed. Cir. 2 012) ; McGahey v. Department of the Air Force , 6 M.S.P.R. 115,
117 (1981); see also Ashwander v. Tennessee Valley Authority , 297 U.S. 288 ,
347 (1936) (Brandeis, J., concurring) (“The Court will not pass upon a
19
constitutional question although properly presented by the record, if there is al so
present some other ground upon which the case may be disposed of.”).
ORDER
¶29 We ORDER the agency to cancel the appellant’ s removal and retroactively
restore h im effective September 10, 2014. See Kerr v. National Endowment for
the Arts , 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
¶30 We also ORDER the agenc y to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, in terest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶31 We further ORDER the agency to tell the appellant promptly in writing
when it believes it ha s fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R . § 1201.181 (b).
¶32 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appel lant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board ’s Order, and should include the dates and results of
any c ommunications with the agency. 5 C.F.R. § 1201.182 (a).
20
¶33 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Def ense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentati on necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNE Y 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 TO THE APPELL ANT
REGARDING YOUR RIGHT TO REQUEST
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your compensatory
damages, including pecuniary losses, future pecuniary losses, and nonpecuniary
losses, such as emotional pain, suffering, inconvenience, mental anguish, and loss
of enjoyment of life. To be paid, you must meet t he requirements set out at
42 U.S.C. § 1981a . The regulations may be found at 5 C.F.R. §§ 1201.201 ,
1201.202, and 1201.204. If you believe you meet these requirements, you must
file a motion for compensatory damages WITHIN 60 CALENDAR DAYS OF
21
THE DATE OF THIS DECISION. You must file your motion with the office that
issued the initial decision on your appeal.
NOTICE OF APPEA L RIGHTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final dec ision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to de cide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
6 Since the issuance of t he initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter .
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 A ppeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the co urt’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appeala ble to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S . district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Boar d, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with t he district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
23
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to repr esentation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websi tes, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportun ity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Em ployment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
24
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for w histleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, w ww.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants t o file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactiv e to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
25
If you are interested in securing pro bono representation fo r an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Boar d neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/p ublic/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 ba ck pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the docume ntation is not applicable:
☐ 2) Settlement agreement, administrative dete rmination, arbitrator award, or order.
☐ 3) Signed and completed “Empl oyee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until noti fied to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside ea rnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pa y received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is l ater reversed , there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt fr om the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
2
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CAS ES
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 subm it 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 Sev erance and Lump Sum Annual Leave Payment to be collected
(if applicable).
Attachments to AD -343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium,
etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amoun ts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of the type of
leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave to
be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and required
data in 1 -7 above.
The following information must be included on AD -343 for Settlement Cases: (Lump Sum Payment,
Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a -g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non -taxable.
If you have any questions or require clarification on the above, please contact NFC’s Payroll/Pe rsonnel
Operations at 504 -255-4630. | LITTON_MATTHEW_C_DC_0752_14_1110_I_2_FINAL_ORDER_1968507.pdf | 2022-10-13 | null | DC-0752 | NP |
4,036 | https://www.mspb.gov/decisions/nonprecedential/LITTON_MATTHEW_C_DC_0752_14_0791_I_1_FINAL_ORDER_1967714.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MATTHEW C. LITTON,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER S
DC-0752 -14-0791 -I-1
DC-0752 -14-0353 -I-1
DATE: October 11, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kristin D. Alden , Esquire and Wynter P. Allen , Esquire, Washington, D.C.,
for the appellant.
Marisa C. Ridi , Esquire and Chad Y. Tang , Esquire, Washington, D.C., for
the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
Member Leavitt recused himself and
did not partic ipate in the adjudication of the se appeal s.
FINAL ORDER
¶1 The agency has filed a petition for review and the appellant has filed a cross
petition for review of the initial decision, which reversed two indefinite
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
requir ed to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
suspension actions, affirmed a third indefinite suspension action, and remanded to
the agency for the application of certain internal procedures relating to its
suspension of the ap pellant’s security clearance. 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 r egulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, a nd the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, sectio n 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that neither party
has established any basis under section 1201.115 for granting the pe tition or cross
petition for review. Therefore, we DENY the petition for review and the cross
petition for review . Except as expressly MODIFIED to (1) clarify the basis upon
which the appellant’s discrimination claim may be heard by the Board,
(2) supple ment the administrative judge’s finding that the agency did not show
that its disability -related inquiries were job -related and consistent with business
necessity, (3) vacate the administrative judge’s alternative finding that the agency
failed to comply w ith its own procedures in suspending the appellant’s security
clearance, as well as her order remanding that issue to the agency for a
determination as to whether the error was harmful in connection with the
appellant’s first indefinite suspension , and (4) vacate the administrative judge’s
findings regarding back pay, we AFFIRM the initial decision.
BACKGROUND
¶2 On January 23, 2014, the appellant , a preference -eligible Special Agent
with the agency’s Federal Bureau of Investigation (FBI) , filed a Board appeal
3
challenging t wo 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.
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 may be
imposed. Id. at 15. The agency relied upon an Office of Inspector General
criminal complaint alleg ing that the appellant made false statements and omitted
required information on a Standard Form (SF) 93, Report of Medical History.
0353 IAF, Tab 12 at 68, Tab 16 at 28 , 34-37. The agency informed the appellant
that the suspension would be in effe ct “pending the final resolution of all actions
including investigation, adjudication, and any related appeals regarding this
matter and/or a determination of whether or not further criminal or administrative
action is warranted.” Id., Tab 1 at 15. The second indefinite suspension, set forth
in a December 13, 2010 letter and retroactively effective November 5, 2010, after
the dismissal of the criminal complaint without prejudice , was based on the
suspension of the appellant’s Top Secret security clear ance and access to
classified information . Id. at 7, 17. The agency 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 regard ing your
eligibility for access to classified information, and/or a determination of whether
or not further administrative actions is warranted.” Id. at 17.2
¶3 On appeal to the Board, the appellant asserted that the agency did not afford
him an opportunity to challenge the indefinite suspensions before it took the
2 On January 23, 2012, the U.S. Attorney’s Office formally declined to prosecute the
appellant. Litton v. Department of Justice , MSPB Docket No. DC -0752 -14-0791 -I-1,
Initial Appeal File (0791 IAF), Tab 51 at 40. The agency then removed the appellant
from a leave without pay status, reinstated his security clearance, and notified him that
it would conduct an independent review to determine his suitability to maintain a Top
Secret clearance. Id., Tab 44 at 6, 62, 68; 0353 IAF, Tab 3 at 17, 24. On or about
January 31, 2012, the agency restored him to a paid duty status. 0791 IAF, Tab 44 at 7.
4
actions, did not inform him of his appeal rights to the Board, and based the
actions on disability discrimination. 0353 IAF, Tab 1 at 5, 7 . He thus asserted
that the actions were based on due pro cess violations and harmful error, and that
there was good cause for any delay in filing because the agency did not inform
him of his right to appeal the actions and he promptly filed his appeal when he
learned of those rights . Id., Tab 3 at 4 -5.
¶4 On June 13, 2014, the appellant filed a second appeal challenging the
agency’s April 17, 2014 indefinite suspension , which was based on his failure to
meet an essential condition of employment, namely, the suspension of his Top
Secret security clearance and access to classified information . Litton v.
Department of Justice , MSPB Docket No. DC -0752 -14-0791 -I-1, Initial Appeal
File (0791 IAF) , Tab 1 at 8, 10. The agency informed the appellant that this
suspension would be in effect “pending the final resolution of a ll security actions
including investigation, adjudication, and any related appeals regarding your
eligibility for access to classified information, and/or a determination of whether
or not further administrative action is warranted.” Id. at 10. In this a ppeal , the
appellant asserted , among other things, that the agency did not afford him the
opportunity to respond to the suspension of his security clearance, did not have
the authority to indefinitely suspend him absent a denial or revocatio n of his
cleara nce, and discriminated against him based on a disability . 0791 IAF, Tab 1
at 8.
¶5 The administrative judge joined the two appeals. 0353 IAF, Tab 28;
0791 IAF, Tab s 9, 12.3 She also found that the appellant established good cause
for the untimely filing of his first appeal because the agency did not provide him
with notice of his right to appeal the action s to the Board , and that he timely filed
his second appeal . 0353 IAF, Tab 21 at 2; 0791 IAF, Tab 52, Initial Decision
3 Although the administrative judge used the term “consolidate” to indicate that the
appeals would be united for consideration, the correct term in this case is “join,”
because two or more appeals were filed by one person. See 5 C.F.R. § 1201.36 (a).
5
(ID) at 1 n.1 . Based on the wri tten record because the appellant withdrew his
request for a hearing, 0791 IAF, Tab 40 at 4 , the administrative judge reversed
the first and second indefinite suspensions , affirmed the third indefinite
suspension, and remanded the first indefinite suspensi on to the agency for
application of its internal procedures for reviewing a decision to withdraw an
employee’s access to classified information , ID at 2, 8, 14-15, 26-28. The
administrative judge found that the agency violated the appellant’s due process
rights in effecting the first and second indefinite suspensions because it did not
afford him an opportunity to respond to th ose actions . ID at 8. In so finding, the
administrative judge held that the appellant was not entitled to back pay because
the ag ency established that h is security clearance had been suspended and the
maintenance of the clearance was a condition of his employment . ID at 9 -14.
The administrative judge further found that the first indefinite suspension must be
reversed because the a gency did not show that it had reasona ble cause to believe
the appellant had committed a crime for which a sentence of imprisonment could
be imposed . ID at 21-22.
¶6 Regarding the appellant’s affirmative defenses, the administrative judge
held that the agency committed disability discrimination in connection with the
first indefinite suspension by submitting illegal medical inquiries to him . ID
at 16-20. Further, she found that the appellant did not show, with respect to the
first indefinite suspension, that the agency engaged in disparate impact disability
discrimination or retaliated against him for engaging in protected activities. ID
at 23-25. She also found that the Board lacked jurisdiction to adjudicate the
appellant’s disability disc rimination claims and claim of reprisal for
whistleblowing in connection with the second and third indefinite suspension s
because those action were based on the suspension of his security clearance , and
the Board cannot review the merits of such a suspensi on. ID at 25 -26.
6
ANALYSIS
The agency’s petition for review is denied
The appellant’s discrimination claim may be raised before the Board.
¶7 The agency asserts that , in finding that the appellant proved that the first
indefinite suspension was based on disability discrimination, the administrative
judge ignored an order she had issued finding that, because the appellant had
previously asserted his discrimination claim in an equal employment opportunity
(EEO) complaint he filed with the agency, which was found by the Equal
Employment Opportunity Commission (EEOC) to be untimely filed, he could not
raise the claim in this appeal. Petition for Review (PFR) File, Tab 3 at 10-12.
The agency contends that a claim of reprisal discrimination was the o nly
discrimination claim the administrative judge permitted the appellant to raise in
connection with his first indefinite suspension, and she correctly found that the
appellant did not prove that claim . Id. at 11.
¶8 The administrative judge had issued an order finding as follows:
As noted in my prior Order, the agency is correct that there is
generally no right to appeal a discrimination claim to the Board when
the EEOC dismisses the claim as untimely. See Vess v. Department
of the Air Force , 54 M.S.P.R. 578, 580 (1992) (if an agency
dismisses an employee’s EEO complaint as untimely, the employee
has an appeal right to the Equal Employment Op portunity
Commission (EEOC), but not to the Board under 5 C.F.R.
§ 1201.154 ). Thus, because the appellant previously asserted in his
EEO complaint before the agency that it discriminate d against him in
violation of the Rehabilitation Act of 1973, he may not raise this
claim in the current appeal. I find, however, that the appellant did
not file an EEO reprisal claim with the agency prior to filing the
instant appeal. As a result, I fin d that he may assert as an
affirmative defense in this appeal that the agency retaliated against
him in violation of the Rehabilitation Act of 1973 when it
indefinitely suspended him on September 15, 2010.
0353 IAF, Tab 27. In the above -referenced order, the administrative judge set
forth the following reasoning:
7
I further find this appeal may proceed as a mixed -case appeal as the
appellant has raised an affirmative defense that the agency
discriminated and retaliated against him in violation of the
Rehabi litation Act of 1973 when it indefinitely suspended him.
While the agency is correct that there is ordinarily no right to appeal
a discrimination claim to the Board when the EEOC dismisses the
claim as untimely, see Vess v. Department of the Air Force ,
54 M.S.P.R. 578, 580 (1992) (if an agency dismisses an employee’s
EEO complaint as untimely, the employee has an appeal right to the
Equal Em ployment Opportunity Commission (EEOC), but not to the
Board under 5 C.F.R. § 1201.154 ), I find good cause to waive the
untimeliness based on the facts and circumstances presented here.
Because the appellant was never provided with notice of his appeal
rights, he could not timely elect a remedy or pursue his Board appeal
rights. See E lbert v. Department of Veterans Affairs , 60 M.S.P.R.
524, 527 (1994) (an agency has an affirmative duty to provide full
and accurate information to an employee regarding his appeal rights.
Good cause for a delayed filing exists where the agency’s failure to
provide the employee with the required notice of appeal rights
effectively contributed to or caused the untimely filing). Thus, I find
good cause to waive the untimely filing of his appeal.
0353 IAF, Tab 21.
¶9 An appellant who ha s been subjected to an action appealable to the Board
may either file a timely formal EEO complaint with the agency regarding the
action or file an appeal with the Board within 30 days of the appealable action.
Gomez -Burgos v. Department of Defense , 79 M.S.P.R. 245, ¶ 8 (1998 ); 5 C.F.R.
§ 1201.154 (a); 29 C.F.R. § 1614.30 2(b); see 5 U.S.C. § 7702 (a)(1) -(2). An
appellant cannot file both an EEO complaint with the agency and an appeal with
the Board based on the same subject matter, and whichever is filed first is
considered an election to proceed in that forum . Gomez -Burgos , 79 M.S.P.R.
245, ¶ 8. Before the appellant filed his January 23, 2014 Board appeal, he first
filed, on August 20, 2012 , a formal EEO complaint with the agency challenging ,
among other things, his September 15, 2010 placement in a leave without pay
status, i.e., his first indefinite suspension . 0353 IAF, Tab 12 at 41, 46, 74. The
8
agency issued a final decision dismissing the complaint as untimely filed , and the
EEOC affirmed that decision . 0353 IAF, Tab 12 at 41 -43, 48-50, 52 .
¶10 Nevertheless, in order for a complaint or appeal to be considered a valid
election, the complainant or appellant must have been informed of his right to
appeal to both forums and the consequences of such an election. French v. U.S.
Postal Ser vice, 80 M.S.P.R. 171, ¶ 6 (1998); see McCoy v. U.S. Postal Service ,
108 M.S.P.R. 160, ¶¶ 13-14 (2008) . Here, the agency did not inform the
appellant when it indefinitely suspended him of his right to file an EEO complaint
with the agency or an appeal with the Board, nor did it inform him of the
consequences of making such an election. 0 353 IAF, Tab 1 at 15 . In fact, the
agency’s letter informed the appellant that he had no right of review or appeal of
the matter. Id. Thus, we find that the appellant did not make a valid election to
pursue his indefinite suspension by filing an EEO complaint with the agency, and
that his appeal and discrimination claim may therefore be raised before the Board .
As the administrative judge found, the appellant establish ed good cause for the
untimely filing of his appeal under 5 C.F.R. § 1201.22 because the agency did not
provide him with notice of his Board appeal rights . ID at 1 n.1; 0353 IAF,
Tabs 21, 27 . There is no basis, therefore, for the agency’s reliance on the
administrative judge’s pre -initial decision order.
¶11 Although the agency relies , in support of the above arguments, upon Nabors
v. U.S. Postal Service , 31 M.S.P.R. 656 , 659 -60 (1986), aff’d , 824 F.2d 978 (Fed.
Cir. 1987) (Table) ; Vess v. Department of the Air Force , 54 M.S.P.R. 578 , 580
(1992) ; Mc Kinney v. Defense Commissary Agency , 93 M.S.P.R. 659, ¶ 6 (2003 );
and Moore v. U.S. Postal Service , 91 M.S.P.R. 277 , ¶ 6 (2002 ), those cases are
distinguishable and do not warrant a different result . In Nabors , 31 M.S.P.R.
at 659-70, and Vess , 54 M.S.P.R. at 579-80, the Board held that an untimely -filed
appeal was not a timely filed mixed case under 5 C.F.R. § 1201.154 because that
regulation only applied when the EEO complaint was timely filed with the
agency , and the EEO complaints in those cases were not timely filed . The Board
9
in McKinney , 93 M.S.P.R. 659 , ¶¶ 9-10, held that , even assuming that the
appellant did not timely file her formal discrimination complaint with the agency,
and that the timeliness regulations at 5 C.F.R. § 1201.154 did not apply, she
timely filed her appeal under 5 C.F.R. § 1201.22 . The Board in Moore ,
91 M.S.P.R. 277 , ¶¶ 9-10, remanded the appeal because it was unclear whether
the appell ant’s EEO complaint was timely filed. None of th ose cases involve d an
agency’s failure to provide an employee with notice of appeal rights . No r do they
otherwise support the agency’s apparent argument that the Board may adjudicate
the merits of an underlying action but not an affirmative defense when the agency
or the EEOC has found that a n EEO complaint involving the same action was
untimely filed. In fact, the Board “shall . . . decide both the issue of
discrimination and the appealable action” in the case of any employee who has
been affected by an appealable action and alleges that a basis for the action was
prohibited discrimination . 5 U.S.C. § 7702 (a)(1) (B). Thus, the agency has not
shown that the appellant was precluded from raising his discrimination claim in
connection with his first indefinite suspension.
The administrative judge correctly found that the agency did not prove that
its disability -related inquiries were job -related and consistent with
business necessity.
¶12 The agency contends that, even assuming that the Board has jurisdiction to
consider the disability discrimination claim, the facts do not support that claim
because the agency based the first indefinite suspension on the criminal complaint
and suspension of the appellant’s Top Secret security clearance , not on the
answers he provided on h is SF-93. PFR File, Tab 3 at 15 -16. The agency also
asserts that one of t he cases relied upon by the administrative judge is
distinguishable because it involved an applicant who w as asked about medical
conditions before receiving a conditional offer of employment. Id. at 18. The
agency claims that, in any event, the questions asked on the SF -93 were
job-related and consistent with business necessity. Id. at 18 -20.
10
¶13 As set forth above, the agency imposed the appellant’s indefinite suspension
from duty and pay on September 15, 2010, “based upon the fact that there is
reasonable cause to believe that you have committed a crime for which a sentence
of imprisonment may be imposed.” 0353 IAF, Tab 12 at 99. Although the
agency also suspended his Top Secret security clearance on or about the same
date, id. at 101, the indefinite suspension letter did not reference the suspension
of th e security clearance, and the Board must adjudicate the charge that was
actually brought by the agency, not a different charge that could have been
brought, see, e.g. , Gustave -Schmidt v. Department of Labor , 87 M.S.P.R. 667, ¶ 8
(2001). Moreover, the criminal complaint , upon which the indefinite suspension
was based, asserted that t here was probable cause to believe that the appellant
violated 18 U.S.C. § 1001 (False Statements), and referenced his answers o n an
SF-93. 0353 IAF, Tab 16 at 28-29, 34 -36. The administrative j udge
acknowledged that the indefinite suspensions were not directly based on the
appellant’s answers on the SF -93, yet held that the alleged crime, upon which the
first indefinite suspension was based, was that the appellant failed to disclose
information on his SF -93 regarding medication s he was taking and treatment he
was seeking relating to those medications . ID at 16-17. Thus, we find no error in
her determination to address whether the first indefinite suspension was based on
improper disability -related inquiries from the SF -93. ID at 18-20.
¶14 Although the administrative judge relied upon Evans v. Department of
Homeland Security , 107 M.S.P.R. 484, ¶ 16 (2007 ), a case involving a
preemployment disability -related inquiry, in support of her finding that the
agency’ s postappointment inquiries constituted disability discrimination , we find
the general princip le set forth therein, that an agency’s violation of 42 U.S.C.
11
§ 12112 (d) and 29 C.F.R. § 1630.13 (a) constitutes discrimination based on
disability , applies in this postappointment case as well.4
¶15 Although the agency contends that it proved that its disability -related
inquiries were job -related and consistent with business necessity, we disagree.
The Americans with Disabilities Act (ADA ) imposes significant restrictions on an
employer’s freedom to make medical inquiries of employees. Archerda v.
Department of Defense , 121 M.S.P.R. 314 , ¶ 29 (2014) . Under 42 U.S.C.
§ 12112 (d)(4)(A), an employer “shall not require a medical exam ination and shall
not make inquiries of an employee as to whether such employee is an individual
with a disability or as to the nature or severity of the disability, unless such
examination or inquiry is shown to be job -related and consistent with business
necessity.” The EEOC ’s regulations imple ment this statut e. See 29 C.F.R.
§§ 1630.13 (b), 1630.14(c).
¶16 Generally, a disability -relate d inquiry or medical examination may be
job-related and consistent with business necessity if a n employer has a reasonable
belief, based on objective evidence, that (1) an employee’s ability to perform
essential job functions will be impaired by a medical condition; or (2) an
employee will pose a direct threat due to a medical condition. Archerda ,
121 M.S.P.R. 314, ¶ 30. A business necessity must be based on more t han mere
expediency. Hanna P. v. Coats , 916 F.3d 327 , 358 (4th Cir. 2019 ). A di rect
threat means a significant risk of substantial harm to the health or safety of the
individual or other s that cannot be eliminated or reduced by reasonable
accommodation. 29 C.F.R. § 1630.2 (r). The employer has the burden of showing
4 As a Federal employee, the appellant’s cla im of disability discrimination arises under
the Rehabilitation Act of 1973. However, the standards under the Americans with
Disabilities Act (ADA), as amended by the ADA Amendments Act of 2008 , have been
incorporated by refere nce into the Rehabilitation Act, and the Board applies them to
determine whether there has been a Rehabilitation Act violation. 29 U.S.C. § 791(f);
Miller v. Department of the Army , 121 M.S.P.R. 189 , ¶ 13 n.3 (2014 ).
12
that its disability -related inquiries are job -related a nd consistent with business
necessity. Archerda , 121 M.S.P.R. 314, ¶ 31.
¶17 Here, the agency’s inquiries were not due to any reas onable belief, based on
objective evidence, that the appellant’s ability to perform his essential job
functions was impaired by a medical condition or that he posed a direct threat due
to a medical condition. Rather, the inquiries were part of a general policy
applying to all similarly situated employees . See Conroy v. New York State
Department of Correctional Services , 333 F.3d 88 , 97-98, 100 -01 (2d Cir. 2003)
(distinguishing between disability -related inquiries to all employees arising from
generally applicable policies and inquiries directed at an individual employee
based on particular facts relating to that employee ). The EEOC’s Enfo rcement
Guidance appears to permit suc h generally applicable policies and inquiries under
certain circumstances. For example, an employer generally may not ask all
employees what prescription medications they are taking. Equal Employment
Opportunity Comm ission , Enforcement Guidance: Disability -Related Inquiries
and Medical Examinations of Employees under the Americans with Disabilities
Act (ADA) , Notice 915.002, Question 8, 2000 WL 33407181, at *9 (July 27,
2000 ) (Enforcement Guidance). Nevertheless , relevant provisions of the
Enforcement Guidance provide as follows:
Asking all employees about their use of prescription medications is
not job -related and consistent with business necessity. In limited
circumstances, however, certain employers may be abl e to
demonstrate that it is job-related and consistent with business
necessity to require employees in positions affecting public safety to
report when they are taking medication that may affect their ability
to perform essential functions. Under these li mited circumstances,
an employer must be able to demonstrate that an employee’s
inability or impaired ability to perform essential functions will
result in a direct threat . For example, a police department could
require armed officers to report when they are taking medications
that may affect their ability to use a firearm or to perform other
essential functions of their job. Similarly, an airline could require its
pilots to report when they are taking any medications that may
13
impair their ability to fly. A fire department, however, could not
require fire department employees who perform only administrative
duties to report their use of medications because it is unlikely that it
could show that these employees would pose a direct threat as a
result of the ir inability or impaired ability to perform their essential
job functions.
Id. (italics and bold in original). Similarly, the Enforcement Guidance provides
that employers may require periodic medical examinations of employees in
positions affecting public safety, such as police officers and firefight ers, in
“limited circumstances” if they are “narrowly tailored to address specific
job-related concerns.” Enforcement Guidance , Question 18 , 2000 WL 33407181,
at *14.
¶18 The relevant questions on the SF -93 aske d the appellant to describe his
“Present Health” and list his “ Current Medication[s],” as well as to disclose
whether he had consulted with or been treated by clinics, physicians, healers, or
other practitioners within the past 5 years for other than minor illnesses .
0791 IAF, Tab 44 at 51. Asking an employee whether he is taking prescription
drugs or medication or questions seeking information about illnesses, mental
conditions, or other impairments an employee has or had in the past trigger ed the
ADA’s, and hence the Rehabilitation Act’s , protections. Lee v. City of Columbus ,
636 F.3d 245, 254 (6 th Cir. 2011 ); see Miller v. Whirlpool Corp. , 807 F. Supp. 2d
684, 685 -87 (N.D. Ohio 2011 ). The administrative judge found that the agency
put forward no evidence or argument showing how the se inquiries were
job-related and consistent with business necessity. ID at 20. The agency asserts
on review that the duties of Special Agents include providing updates on medical
health and medications, the SF -93 is a Government -wide form used as part of a
fitness -for-duty examination , and it had a “business necessity in obtaining on a
regular basis medical information about its Special Agents .” PFR File, Tab 3
at 18-20. Nevertheless, the agency has not explained the business necessity in
asking an employee like the appell ant for a list of all current medications taken
14
and all treatment that did not involv e minor illnesses . The agency has not shown
that the se inquiries were narrowly tailored to address specific job -related
concerns , such as asking whether Special Agents we re taking medications that
may affect their ability to perform the essential functions of their positions .
Under these circumstances, the agency has not shown that the broad inquiries at
issue in this case were job-related and consistent with business nec essity , and
thus, has not shown error by the administrative judge. See Roe v. Cheyenne
Mountain Conference Resort , Inc., 124 F.3d 1221 , 1226 -27, 1230 (10th Cir. 1997)
(finding that a policy requiring employees to report all drugs present within their
bodies violated the ADA in the absence of a s howing that the policy was
job-related and consistent with business necessity ); Port Authority Police
Benevolent Association , Inc., v. Port Authority of New York & New Jersey ,
283 F. Supp. 3d 72, 84-85 (S.D.N.Y. 2017) ( holding that a health questionnaire of
police officers w as not narrowly tailored to address specific job -related concerns
when it was intended to be comprehensive and to reveal a panoply of conditions,
including those having no relevan ce to an officer’s ability to perform the job );
Stahly v. South Bend Public Transp. Corp. , No. 3:10 -CV-257-JVB, 2013 WL
55830, at *6 -7 (N.D. Ind. 2013) (holding that a policy requiring the disclosure of
all medications violated 42 U.S.C. § 12112 (d)(4)(A) when the agency provided no
evidence of business necessity and merely set forth the purpose of its policy
without proving , with evidence , that the policy was necessary to achieve the
purpose); Scott v. Napolitano , 717 F. Supp. 2d 1071 , 1076, 1084 -85 (S.D. Cal.
2010) (finding that the Federal Protective Service’s disability -related inquiries to
a Special Agent, including asking him to list all medications taken and whether he
had consulted with or been treated by clinics, physicians, healers, or other
practitioners for other than minor illnesses , were not narrowly tailored to assess
whether he could perform the essential functions of his job ).
¶19 In reaching our determination, we do not hold that a law enforcement
agency cannot make inquiries regarding an employee’s health . Rather, we hold
15
that such inquiries must comport with the requirement of 42 U.S.C.
§ 12112 (d)(4)(A) that any d isability -related inquiries be job -related and
consistent with business necessity . See 29 C.F.R. § 1630.14 (c). The agency
simply did not meet its burden in this case. See Scott , 717 F . Supp. 2d at 1085.
The agency’s arguments regarding alternative findings by the
administrative judge need not be addressed on review .
¶20 The agency asserts that it had reasonable cause to believe that the appellant
committed a crime for which a sentence of impris onment could be imposed. PFR
File, Tab 3 at 20. The agency contends that it only had to show reasonable cause
to “believe,” and not that the appellant could actually be convicted of the crime or
whether the appropriate criminal statute was being ap plied. Id. at 21 -22.
¶21 The administrative judge found, in an apparent alternative finding, that the
appellant’s first indefinite suspension must be reversed because the agency did
not show that it had reasonable cause to believe that he had committed a crim e for
which a sentence of imprisonment could be imposed . ID at 21. The
administrative judge noted that this issue involved whether the agency had
proven, in its case in chief, that the appellant’s first indefinite suspension was
proper. ID at 21 n.15. Because the administrative judge correctly reversed th at
suspension based on a violation of due process, we need not address the agency’s
arguments regarding this alternative finding. See Abbott v. U.S. Postal Service ,
121 M.S.P.R. 294, ¶ 8 (2014); Cowart v. U.S. Postal Service , 117 M.S.P.R. 572 ,
¶¶ 5, 7 (2012 ); Giannantonio v. U.S. Postal Service , 111 M.S.P.R. 99 , ¶ 5 (2009) .
¶22 The agency also asserts that it complied with its own procedures when it
suspended the appellant’s Top Secret security clearance in September 2010. PFR
File, Tab 3 at 23. In this regard, the agency contends that, although the
administrative judge held that the agency was required to provide the appellant
with a comprehensive and detailed written explanation of the basis for the
suspension of his security clearance in accordance with Exec utive Order 12968,
16
the referenced section of the executive order applies to denials and revocations of
security clearances, not suspension of such clearances. Id. at 23-24.
¶23 The administrative judge, in what appears to be another alternative finding,
held in connection with the appellant’s claim of harmful error that the agency
failed to comply with its own procedures in suspending the appellant’s security
clearance , and that a remand to the agency was necessary to determine whethe r
the error was harmful in relation to the first indefinite suspension . ID at 26 -28.
The administrative judge noted that under Romero v. Department of Defense ,
527 F.3d 1324 , 1329 -30 (Fed. Cir. 2008), the Board has jurisdiction to review
whether an agency complied with its own regulations and procedures in revoking
a security clearance . The statutory basis for such review is 5 U.S.C.
§ 7701 (c)(2)(A), which provides that the Board may not sustain an action on
appeal if the appellant shows harmful error in the application of the agency’s
procedures in arriving at its decision. Schnedar v. Department of the Air Force ,
119 M.S.P.R. 246, ¶ 9 (2013 ). Thus, if the Board found that the agency failed to
comply with such procedures, any adverse action based on the security clearance
revocation would be reversed if the appellant proves that the error was harmful.
ID at 27. Nevertheless, because the admini strative judge correctly reversed the
September 2010 indefinite suspension on due process grounds, we need not
address this alternative finding or the agency’s challenges to that finding , and the
administrative judge should not have made such a finding and ordered a remand
in this regard. See Giannantonio , 111 M.S.P.R. 99 , ¶ 5. Therefore, we modify
the initial decision by vacatin g the finding remanding this case to the agency.
The administrative judge correctly found that the agency’s due process
violation warrants reversal of the first two indefinite suspensions .
¶24 The agency contend s that the administrative judge erred when she fo und
that a failure to abide by the appellant’s constitutional due process rights was not
subject to the harmful error test. PFR File, Tab 3 at 26 n.7. Th e agency contends
that any failure to provide the appellant with procedural due process requirements
17
in connection with the first and second indefinite suspensions was not harmful
because it would not have altered the agency’s decision , given that it suspended
the appellant ’s Top Secret security clearance and he “would have been unable to
present any evid ence that would have reversed the suspension of his security
clearance and allowed him to return to duty in any FBI position in 2010 through
2012 because it is undisputed that all FBI positions required a security
clearance.” PFR File, Tab 3 at 26 -28. We disagree.
¶25 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). Thus, when an appealable
action against a nonprobationary Federal employee has not been effected in
accordance with the minimum procedures that satisfy the constitutional
requirements of due process of law un der Loudermill , the action must be reversed
because it cannot withstand constitutional scrutiny. Stephen v. Department of the
Air Force , 47 M.S.P.R. 672, 684 (1991). When an appealable action meets the
minimum requirements of due process of law under Loudermill , the Board will
reverse the action for harmful error under 5 U.S.C. § 7701 (c)(2)(A) only when the
evidence and argument of record shows that the procedural error likely caused the
agency to reach a conclusion different from the one it would have reached in the
absence or cure of the error . Id. at 685. Thus, a dministrative j udges shall reverse
an action for harmful error only when the appellant alleges that the agency
committed procedural error, even though the procedures afforded by the agency
satisfy the constitutional requirements of due process of law. Id.
¶26 Here, t he administrative judge correctly found that the agency violated the
appellant’s due process rights when it did not, either before or after indefinitely
suspending him in September and November 2010, provide him with an
18
opportunity to respond to the action s, that an agency’s failure to abide by an
appellant’s constitutional due process was not subject to the harmful error test,
and that reversal of the actions was required as a result . ID at 6, 8; see Stone v.
Federal Deposit Insurance Corporation , 179 F.3d 1368 , 1377 (Fed. Cir. 1999);
Buelna v. Department of Homeland Security , 121 M.S.P.R. 262, ¶ 15 n.6 ( 2014 ).
The agency has shown no error in th at determination .
The appellant’s cross petition for review is denied
¶27 The appellant asserts that he is entitled to back pay, not withstanding the
suspension of his security clearance , because the agency cannot show that its
suspension of his clearance was “legal and legally executed,” given that the
agency did not follow the requisite procedures for suspending the clearance. PFR
File, Tab 5 at 32 -35. Thus, he contends that the agency has not shown that he
was unavailable for the performance of his duties for reasons other than those
related to, or caused by, the unjustified or unwarranted personnel action , and that
the suspension of his security clearance “was simultaneous with, and directly
related to, the unjustified personnel action.” Id. at 33 -35.
¶28 After finding that the agency violated the appellant’s due process rights in
effecting the September and November 2010 indefinite s uspensions and ordering
the reversal of those actions, ID at 8 , the administrative judge addressed the
question of whether the appellant would be entitled to back pay under the Back
Pay Act , finding that he w as not entitled to such pay because the agency
established that it suspended h is security clearance and maintaining such a
clearance was a condition of his employment , ID at 9-14; see 5 C.F.R.
§ 550.805 (c)(2) (providing that, in comput ing back pay under the Back Pay Act,
an agency may not include any 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 act ion”) . The
question of the appellant’s entitlement to back pay , however, was not identified
as an issue in this stage of the proceedings. 0791 IAF, Tab 43 at 4, 12.
19
Moreover, the parties d id not address it in their closing briefs . 0791 IAF,
Tabs 44, 45 , 51. Under these circumstances, we find that the parties have not had
a proper opportunity to address the legal and factual issues surrounding the
appellant’s entitlement to back pay. Thus, we vacate the initial decision’s
findings in that regard. If the parties disagree about the appropriateness of back
pay after the issuance of this decision , the issue can be litigated as part of a
compliance proceeding before the regional office. See Hulsey v. Department of
the Air Force , 57 M.S.P.R. 473, 479 n.14 ( 1993) ; Shelton v. Office of Personnel
Management , 34 M.S.P.R. 356 , 360 (1987) (suggesting that the appellant’s
request for back pay at the merits stage of the case was premature and would be
addressed in a compliance proceeding ). As set forth in the initial decision , the
appellant may file a petition for enforcement to resolve any disputed amount of
back pay . ID at 28-30.5
¶29 The appellant also contends that the administrative judge’s decision to
remand the appeal to the agency to afford h im access to the appropriate s ecurity
clearance procedures is impractical and an empty exercise because of subsequent
events, including h is removal . PFR File, Tab 5 at 35 -36. Instead, the appellant
asserts that the agency violated his due process rights and committed harmful
error, which entitled him to back pay for the reasons set forth above. Id. at 36.
The appellant also contends that the agency’s suspension of the security clearanc e
was unauthorized because Executive Order 12968 and the agency’s own
regulations only reference th e rescission or revocation of a security clearance, not
its suspension. Id. at 37 -40. Thus, he asserts that the indefinite suspension was
not in accordance with law, and the suspension of his clearance cannot preclude
5 The administrative judge noted that, even if the appellant was not entitled to back pay
under the Back Pay Act, he may be entitled to back pay under the remedies that are
available under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq. , to an appellant who proves disability discrimination. ID at 20; see
Edwards v. Department of Transportation , 112 M.S.P.R. 82 , ¶ 18 (2009); Schultz v.
U.S. Postal Service , 89 M.S.P.R. 123 , ¶ 8 n.5 (2001).
20
an award of back pay. Id. at 38 -39. As set forth above, we have vacated that
portion of the initial decision remanding the case to the agency. Moreover, the
appellant’s arguments regarding back pay are premature at this stage of the
proceedings. Thus, these arguments are without merit.
¶30 The appellant also asserts that the administrative judge erred when she
appeared to find in a prehearing order that he was time -barred from pursuing an
affirmative defense of disability discrimination. PFR File, Tab 5 at 40 , 46. As
set forth above, because the appellant did not make a valid election when he first
raised his claim of disability discrimination in an EEO complaint filed with the
agency, he may pursue such a claim in his appeal of his first indefinite
suspension. To the extent that the administrative judge ruled otherwise in a n
order she issued before the initial decision, we disagree with that order . In any
event, because the administrative judge ultimately correctly addressed the
appellant’s claim of disability dis crimination, any error in an earlier ruling does
not warrant a different result. See Panter v. Department of the Air Force ,
22 M.S.P.R. 2 81, 282 (1984) (an adjudicatory error that is not prejudicial to a
party’s substantive rights provides no basis for reversal of an initial decision ).
ORDER
¶31 We ORDER the agency to cancel the first two indefinite suspensions and
retroactively restore the ap pellant effective September 15, 2010, through
January 31, 2012. 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.
¶32 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 regul ations, 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
21
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.
¶33 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 as k
the agency about its progress. See 5 C.F.R. § 1201.181 (b).
¶34 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).
¶35 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accou nting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to proces s payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You m ay 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
22
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 T HIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE TO THE APPELL ANT
REGARDING YOUR RIGHT TO REQUEST
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your compensatory
damages, including pecuniary losses, future pecuniary losses, and nonpecuniary
losses, such as emotional pain, suffering, inconvenience, mental anguish, and loss
of enjoyment of life. To be paid, you must meet the requirements set ou t at
42 U.S.C. § 1981a . The regulations may be found at 5 C.F.R. §§ 1201.201 ,
1201.202, and 1201.204. If you believe you me et these requirements, you must
file a motion for compensatory damages WITHIN 60 CALENDAR DAYS OF
THE DATE OF THIS DECISION. You must file your motion with the office that
issued the initial decision on your appeal.
NOTICE OF APPEAL RIG HTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described bel ow do not represent a statement of how courts will rule
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 mat ter.
23
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filin g time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
24
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, t hen you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at th eir respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your rep resentative receives this decision before you do, then you must file
25
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EE OC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel pra ctice described in
section 2302(b) other than practices described in section 2 302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.7 The court of appeals must receive your
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of 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.
26
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Cir cuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants b efore the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective website s, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx .
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are p aid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the ba ck pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the docume ntation is not applicable:
☐ 2) Settlement agreement, administrative dete rmination, arbitrator award, or order.
☐ 3) Signed and completed “Empl oyee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civili an 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.
Docume ntation 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 pa y received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed , there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leav e
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
2
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decisi on.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD -343
1. Provide pay entitlement to incl ude Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings document ation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of t he period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1 -7 above.
The following information must be included on AD -343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a -g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non -taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504 -255-4630. | LITTON_MATTHEW_C_DC_0752_14_0791_I_1_FINAL_ORDER_1967714.pdf | 2022-10-11 | null | S | NP |
4,037 | https://www.mspb.gov/decisions/nonprecedential/ARTIS_ERIC_S_AT_0752_14_0390_I_1_FINAL_ORDER_1967719.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ERIC S. ARTIS,
Appellant,
v.
TENNESSEE VALLEY AUT HORITY,
Agency.
DOCKET NUMBER
AT-0752 -14-0390 -I-1
DATE: October 11, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
James E. Bankston , Florence, Alabama, for the appellant.
Jennifer L. Grace , Esquire, Knoxville, Tennessee, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fa ct; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision we re not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not avail able when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 As further detailed in the initial decision, the appellant most recently held
the p osition of Maintenance Coordinator at a power plant. Initial Appeal File
(IAF), Tab 41, Initial Decision (ID) at 1. Among other things, that position
required that he facilitate maintenance tasks by ensuring that they were
coordinated appropriately and t hat the employees doing the hands -on work had
the necessary information, instructions, parts, and tools. ID at 2.
¶3 In the fall of 2013, scheduled maintenance required that some transformers
be temporarily grounded. Id. Because that work was done improp erly, an
electrical arc explosion occurred on October 2, 2013, injuring an electrician and
causing approximately $100,000 in property damage. ID at 2 -3. An investigatory
team concluded that several human errors contributed to the improper grounding
and r esulting explosion. ID at 3. For their respective roles, two electricians
received written warnings, a foreman received a 3 -day suspension and demotion,
and the agency proposed the appellant’s removal. Id.
¶4 The proposal to remove the appellant included a narrative charge,
explaining that he had been experiencing performance problems since taking the
3
Maintenance Coordinator position in January 2012, culminating in his failure to
develop a work package with grounding plan, as instructed, which directly
contributed to the October 2013 explosion. ID at 3 -4; IAF, Tab 13 at 28 -29.
Following the appellant’s response, the deciding official upheld his removal,
effective December 20, 2013. ID at 4; IAF, Tab 13 at 19 -26.
¶5 The appellant filed the instant appeal, cha llenging his removal and raising
several affirmative defenses. ID at 4. After holding the requested hearing, the
administrative judge found that the agency met its burden, ID at 5 -20, 27-30, and
the appellant did not meet his, ID at 20 -27. Therefore, t he administrative judge
affirmed the appellant’ s removal . ID at 30. The appellant has filed a petition for
review. Petition for Review (PFR) File, Tab 1. The agency has filed a response ,
and the appellant has replied. PFR File, Tabs 3 -4.
The administra tive judge properly found that the agency met its burden of
proving the charges.
Charge 1 – Failure to Follow Instructions
¶6 The administrative judge construed the narrative in the agency’s proposal to
remove the appellant as consisting of two charges. ID a t 5. She characterized the
first as a charge that the appellant directly contributed to the electrical explosion
incident by failing to follow a direct instruction to help develop a work package.
Id.; IAF, Tab 13 at 28. The administrative judge determin ed that the agency was
required to show that the appellant was given a proper instruction and failed to
follow it. ID at 5; see Archerda v. Department of Defense , 121 M.S.P.R. 314 ,
¶ 16 (2014) (recognizing that, to prove a charge of failure to follow instructions,
an agency must establish that: (1) the employee was given proper instructions,
and (2) the employee failed to follow the instructions, without regard to whether
the failure was intentional or unintentional). The administrative judge found that
the agency met that burden by proving that the appellant’s direct supervisor
properly instructed him to work with a foreman and systems engineer to develop a
4
work package with grounding plan, but the appellant failed to follow those
instructions. ID at 5 -12.
¶7 On review, without citing any evidence , the appellant asserts that he was
not given proper instructions because he lacked the training to develop a work
package with grounding plan or otherwise perform the work himself to avoid the
electrical explosion. PFR File, Tab 1 at 8 -15. He generally shifts the blame for
the explosion to the employees that conducted the improper grounding,
suggesting that he should not be held responsible for their mistakes . Id.
However, the instructions at issue did not require the appellant to perform the
work or d evelop the plan independently, without the necessary expertise. Instead,
the undisputed instructions were to coordinate with a foreman and systems
engineer to develop the work package and grounding plan. ID at 6; IAF, Tab 35,
Hearing Compact Disc (HCD) , Day 1 (testimony of the appellant’s supervisor).
That coordination is something the appellant acknowledges that he could have
done, and it is consistent with the responsibilities of his Maintenance Coordinator
position. PFR File, Tab 1 at 9; IAF, Tab 23, Subtab K. Had he followed those
instructions, the systems engineer reportedly would have prevented the mistakes
and resulting explosion. ID at 11 n.9; IAF, Tab 35, H CD, Day 2 (testimony of the
systems engineer). Accordingly, the appellant has presented no basis for us to
conclude that his alleged lack of expertise or the culpability of others is of any
consequence to the failure to follow instructions charge underlying his removal.
¶8 The appellant’s petition contains several other broad arguments concerning
his failure to follow instructions. For example, he alleges that the administrative
judge “ignored agency witnesses [’] testimony that was contrary to management’s
representations” and asserts that she “obviously did not factor in [agency]
maintenance protocol that was detailed in testimony and confirmed by exhibits.”
PFR File, Tab 1 at 14. However, these arguments are not supported by specific
references to the record. Without re levant details, such as what testimony,
evidence, and maintenance protocols he is referring to, the appellant has
5
presented no basis for us to disturb the administrative judge’s well -reasoned
conclusion that the agency met its burden for this charge. See Weaver v.
Department of the Navy , 2 M.S.P.R. 129 , 133 (1980) (recognizing that before the
Board will undertake a complete review of the recor d, the petitioning party must
explain why the challenged factual determination is incorrect and identify the
specific evidence in the record that demonstrates the error); 5 C.F.R.
§ 1201.11 4(b) (requiring that a petition for review “be supported by references to
applicable laws or regulations and by specific references to the record”).
Charge 2 – Poor Performance
¶9 The administrative judge characterized the second charge underlying the
appellant’s removal as one of poor performance, with separate specifications
concerning : (a) the planning and execution of high hazard jobs,
(b) accountability and ownership, and (c) other areas. ID at 5, 15. She found that
the agency failed to prove spec ifications (b) or (c) but nevertheless proved the
charge based on specification (a) and the appellant’s involvement in the October
2013 electrical explosion . ID at 12 -20.
¶10 On review, the appellant first argues that the administrative judge
improperly consi dered prejudicial testimony and records of previous performance
issues that had been removed from his personnel file following a grievance.
PFR File, Tab 1 at 15 -16. We disagree. Although the administrative judge
discussed the appellant’s prior performance issues, including actions that resulted
from settlement of a related grievance, she explicitly noted that the information
was provided only for purposes of background and context. ID at 13 -14. Among
other things, that background information explained how, when, and why the
appellant moved into the position he held at the time of the October 2013
explosion. ID at 14.
¶11 The appellant also pres ents a number of arguments specific to his
performance as it relates to the October 2013 explosion. PFR File, Tab 1
at 15-22. For example, he asserts that any subpar performance concerning the
6
electrical explosion should have been negated by the fact tha t he was forced to
perform the duties of two positions at that time. Id. at 17. He also suggests that
managers had not enforced agency maintenance guidelines before and were only
doing so now because of the resulting mistake and explosion. Id. at 18. A gain,
the appellant has failed to identify any evidence to support these bare assertions.
Therefore, they are unavailing. See Weaver , 2 M.S.P.R. at 133; 5 C.F.R.
§ 1201.114 (b). As det ailed throughout the administrative judge’s well -reasoned
findings, the appellant’s responsibilities included coordinating the work plan and
temporary grounding of transformers in October 2013; his failure to do so
contributed to grave results, including s erious bodily harm to another employee
and extensive damage to agency property, rendering his performance in the
“planning and execution of high hazard jobs” unacceptable. ID at 2 -16, 20.
The appellant failed to meet his burden of proving any affirmative defense.
¶12 Below, the appellant argued that his removal was improper retaliation for :
(1) requesting an adjustment to his work schedule for child care purposes , and
(2) filing a November 2011 grievance with the agency’s Employee Concerns
Office. IAF, Tab 33 at 4 -5. The administrative judge found that the first matter
did not constitute any sort of protected activity. ID at 20 -21. She also found that ,
although the second matter was protected activity under 5 U.S.C.
§ 2302 (b)(9)(A)(ii), the appellant failed to meet his burden of establishing a
genuine nexus between that protected activity, his filing of the November 2011
grievance, and his removal.2 ID at 21 -23; see Warren v. Department of the Ar my,
804 F.2d 654 , 656 -58 (Fed. Cir. 1986) (requiring that an appellant show that he
2 In its response to the appellant’s petition for review, the agency argues that the
prohibited personnel practice the administrative judge found applicable to the
appellant’s allegation of reprisal for a prior grieva nce is actually inapplicable because
the Tennessee Valley Authority is a Government corporation. PFR File, Tab 3 at 8 n.3
(citing 5 U.S.C. § 2302 (a)(2)(C)(i) (defining “agency” for purposes of sec tion 2302));
ID at 21 -22 (citing 5 U.S.C. § 2302 (b)(9)(A)(ii)). Because the appellant has not
reasserted this reprisal claim on review, we need not address the agency’s argument.
7
engaged in protected activity, the accused official knew of t he activity, the
adverse action under review could have been retaliation under the circumstances,
and there was a genuine nexus between the alleged ret aliation and the adverse
action), superseded in part by statute as stated in Alarid v. Department of the
Army , 122 M.S.P.R. 600 , ¶ 15 (2015) ; Mattison v. Department of Veterans
Affairs , 123 M.S.P.R. 492 , ¶ 8 (2016) (explaining that the Warren standard no
longer applies in many other contexts but does still apply for purposes of an
affirmative defense of retaliation under 5 U.S.C. § 2302 (b)(9)(A)(ii) that does not
involve equal employment opportunity activity protected under Title VII).
¶13 The appellant also a sserted a race and sex discrimination affirmative
defense below. IAF, Tab 1 at 6. The administrative judge found that although
there was some evidence of prior management being unduly harsh in earlier years,
the appellant failed to prove that race or sex discrimination was a motivating
factor in his removal. ID at 24 -27; see Pridgen v. Office of Management
& Budget , 2022 MSPB 3 1, ¶¶ 20 -22 (setting forth the standards for an affirmative
defense of race or sex discrimination, including the requirement that an appellant
prove that the prohibited consideration was either a motivating factor, a but -for
causation, or both, in the chal lenged personnel action) .3
¶14 On review, mixed with his arguments concerning the agency’s proof of its
charges, the appellant uses the word “retaliation” in one instance, but does so
without implicating either of the retaliation claims he previously raised.
PFR File, Tab 1 at 5. Instead, the appellant refers to “retaliation” while
3 Because we affi rm the administrative judge’s finding that the appellant failed to meet
his initial burden to prove that race or sex was a motivating factor in the agency’s
actions, we need not resolve the issue of whether the appellant or the agency has the
burden t o pro ve that discrimination or retaliation was a “but -for” cause of the agency’s
decisions. See Babb v. Wilkie , 589 U.S. ____, 140 S. Ct. 1168 , 1173 -74, 1176 -78
(2020) (holding that, in claims of discrimination in Federal employment arising under
the Age Discrimination in Employment Act, an employer engages in illegal
discrimination “if age discrimination plays any part in the way a decision is m ade,” but
that an employee must prove the discrimination was a but -for cause of the agency’s
action to obtain full relief).
8
appearing to reassert his race discrimination claim . Id. The appellant alleges,
generally, that African American managers were subject to disparate treatment at
the agency. Id. at 5-6. According to the appellant, this was particularly so in
years past, under prior management. Id. at 16, 22 -23. The appellant also
suggests that his most recent supervisors were racist and prejudic ed, “as
demonstrated by the volatile language” the y used to describe him. Id. at 13,
17-18.
¶15 The administrative judge fully addressed the aforementioned allegations.
ID at 24 -27. Among other things, she recognized that the proposing official
allegedly had referred to the appellant as arrogant and worthless but found that ,
even if true, the references had no racial connotation . ID at 24, 26. She also
considered prior management’s alleged harsh treatment of subordinates but found
that to have little bearing on whether current management had a discr iminatory
motive in removing the appellant. ID at 25. The administrative judge concluded
that, although the appellant presented broad allegations of discrimination, he
failed to support his discrimination affirmative defense with detailed or specific
evidence. ID at 26 -27. We find no basis for reaching a different conclusion.
Although the appellant generally has referred to the agency’s actions as
discriminatory, he has done so without identifying specific support for the claim.
See supra ¶ 14. There fore, we agree with the administrative judge’s
well-reasoned conclusion that the appellant failed to meet his burden of proving
that race or sex was a motivating factor in his removal. See Pridgen ,
2022 MSPB 31, ¶¶ 20-25.
The appellant has presented no other basis for disturbing the initial decision.
¶16 On review, the appellant challenges the administrative judge’s delay
between the hearing and her issuance of the initial decision. PFR File, Tab 1
at 6-7. It is clear, however, that the administrative judge at all times had access
to the complete record, including the hearing compact disc. We find, therefore,
that the appellant has not shown that the delay constituted an adjudicatory error
9
that prejudiced his substantive rights. See Panter v. Department of the Air Force ,
22 M.S.P.R. 281 , 282 (1984). We also recognize that the appellant’s
representative has repeatedly expressed his personal views about several aspects
of the appellant’s employment and removal, citing his past experience as an
agency electrical operat or, system dispatcher, and electrician. PFR File, Tab 1
at 22. However, these assertions are unavailing. The statements of a party’s
representative in a pleading do not constitute evidence. Marcantel v. Department
of Energy , 121 M.S.P.R. 330 , ¶ 6 n.1 (2014).
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described b elow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies t o your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any m atter.
10
(1) Judicial review in general . As a general rule, an appellant seeking
judic ial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any a ttorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and tha t such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
11
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you mus t file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be ent itled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for re view to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
12
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enha ncement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
compete nt jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
13
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/Cou rtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ARTIS_ERIC_S_AT_0752_14_0390_I_1_FINAL_ORDER_1967719.pdf | 2022-10-11 | null | AT-0752 | NP |
4,038 | https://www.mspb.gov/decisions/nonprecedential/FORD_BETTIE_M_DC_0831_16_0647_I_1_REMAND_ORDER_1967739.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BETTIE M. FORD,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DC-0831 -16-0647 -I-1
DATE: October 11, 2022
THIS ORDER IS NONPRECEDENTIAL1
Bettie M. Ford , Washington, D.C., pro se.
Karla W. Yeakle , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has file d a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM)
denying her request for a full Civil Service Retirement System (CSRS) survivor
annuity. For the reasons discussed below, we GRAN T the appellant’s petition for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
review, VACATE the initial decision , and REMAND the case to the Washington
Regional O ffice for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant’s late husband retired from Federal service under CSRS,
effective April 27, 2007. Initial Appeal File (IAF), Tab 5 at 48. He submitted
Standard Form 2801 -2 (SF -2801 -2), a Spouse’s Consent to Survivor Election,
with his application for retirement. Id. at 45. On the SF -2801 -2, a person
purporting to be the appellant consented to a partial survivor annuity equal to
55% of $3,090.81 per year. IAF, Tab 5 at 45, Tab 11, Initial Decision (ID) at 2.
The appellant’s husband died on March 1, 2015, and the appellant submitted an
application for death ben efits. IAF, Tab 5 at 15; ID at 2. OPM awarded the
appellant a partial survivor annuity in the amount of $161.00 per month. ID at 2.
The appellant submitted a request for reconsideration, claiming that her late
husband filled out the SF -2801 -2 in a hurr y, and he mistakenly elected as an
annual partial survivor annuity the monthly amount that he was receiving at that
time. IAF, Tab 5 at 14. She also contended that her late husband died suddenly,
without getting his affairs in order, and he did not inten d for her to receive only
$161 .00 per month. Id. at 13. The appellant further asserted that the signature on
the notarized Spouse’s Consent to Survivor Election form was not hers. Id. at 14,
45.
¶3 OPM responded by informing the appellant that the monthl y computed rate
of her survivor annuity was correct based on the election made by her late
husband when he retired. Id. at 6, 9. OPM stated that it had no reason to
question the validity of the appellant’s notarized signature, attesting that she
freely a nd irrevocably consented to her late husband’s election of a partial
survivor annuity. Id. at 7. OPM also observed that her late husband’s annuity
commenced on May 1, 2007, and therefore he had until December 1, 2008, to
increase her survivor election bu t did not do so. Id. OPM further stated that it
3
had no administrative discretion in this matter and denied the appellant’s request
for reconsideration in a final decision issued on April 28, 2016. Id. at 6-8.
¶4 The appellant filed the instant appeal wit h the Board, challenging OPM’s
final decision. IAF, Tab 1. On appeal, the appellant repeated the same arguments
that she raised to OPM. IAF, Tab 5 at 3 -4, Tab 10 at 3. She did not request a
hearing. Based on the written record, the administrative judg e issued an initial
decision affirming OPM’s final decision. ID at 4. He found that the appellant
failed to prove by preponderant evidence that her husband elected a full survivor
annuity and that the agency demonstrated that she consented to a partial
survivor’s annuity. Id. at 3-4.
¶5 The appellant has filed a petition for review, reiterating the arguments she
made before the administrative judge and OPM. Petition for Review File, Tab 1
at 1-2. She reasserts that the signature on the notarized form was not hers and
that her late husband mistakenly elected as her annual annuity the amount of his
monthly annuity. Id. The appellant asks the Board to compare her signature in
the appeal file to the notarized signature on the SF -2801 -2 and see that the
signatures do not match because she cannot afford a handwriting expert or a
lawyer.2 Id. at 2. The appellant also reasserts that she would never have agreed
to receive only $161 .00 per month because she cannot survive on this amount. Id.
The appellant furt her states that her husband wanted more for her, and he always
provided for his family but he made a mistake. Id.
ANALYSIS
¶6 Under the CSRS, the surviving spouse of a retired Federal employee is
entitled to an annuity equal to 55% of the retiree ’s annuity unless the surviv or
consented in writing to rece ive no such annuity or a reduced annuity at the time
2 On appeal, the appellant provided examples of her signature on photocopies of her
driver’s license, her Social Security card, a lease form, and a tax record. IAF, Tab 10
at 3-9.
4
of the employee ’s retirement. 5 U.S.C. §§ 8339 (j)(1), 8341(b)(1); Hathaway v.
Office of Personnel Management , 118 M.S.P.R. 678 , ¶ 7 (2012); 5 C.F.R.
§ 831.61 4. Pursuant to 5 U.S.C. § 8339 (j)(1), the election must be made in
accordance with the requirements that OPM prescribes by regulation and that the
election is irrevocable. OPM ’s regulations pr ovide, in pertinent part, that “[a]
married employee may not elect . . . a partially reduced annuity . . . without the
consent of the current spouse ,” 5 C.F.R. § 831.614 (a), which must be filed on a
form prescribed by OPM, 5 C.F.R. § 831.614 (b). The form prescribed by OPM
“require [s] that a notary public or other official authorized to administer oaths
certify that the c urrent spouse presented identification, gave consent, signed or
marked the form, and acknowledged that the consent was given fre ely in the
notary’s or official’ s presence. ” IAF, Tab 5 at 45; 5 C.F.R. § 831.614 (c). The
burden of proving entitlement to a survivor annuity is on the applicant for
benefits. Cheeseman v. Office of Personnel Management , 791 F.2d 138 , 140 -41
(Fed. Cir. 1986) .
¶7 There is only one dispute of material fact in this appeal, namely whether the
signature appearing on the SF -2801 -2 Spouse’s Consent to Survivor Election is
genuine. The administrative judge found , and we agree, that the signature
appearing on the SF-2801 -2 does not appear to be identical to the appellant’s
signature as it appears on various other documents in the record. ID at 3 ; IAF,
Tab 1 at 7, Tab 5 at 13, 21, 23, 45, Tab 10 . Nevertheless , we also agree that these
signatures are not so different that a layperson could say with any confidence that
they were made by different people. ID at 3 -4. Furthermore, we observe that the
signature on the SF -2801 -2 was notarized by one S ham Robertson and t hat the
notarization of a signature creates a strong but rebuttable presumption of validity.
¶8 The Board is not bound, but may be guided by the Federal Rules of
Evidence. Social Security Administration v. Long , 113 M.S.P.R. 190 , ¶ 10
(2010), aff’d , 635 F.3d 526 (Fed. Cir. 2011). Under Federal Rule of
Evidence 302, “[i]n a civil case, state law governs the effect of a presumption
5
regarding a claim or defense for which state law supplies the rule of decision.” In
this case, the SF -2801 -2 reflects that the notarial act occurred in the District of
Columbia and was made by a notary commissioned under the laws of the District.
IAF, Tab 5 at 45. We therefore find that the effect of the notarization is
determined under the laws of the District of Columbia. See Butler v.
Encyclopedia Brittanica, Inc. , 41 F.3d 285 , 295 & n.6 (7th Cir. 1994) (applying
state law to determine the effect of the notarization of a signature on an Empl oyee
Retirement Income Security Act spousal waiver form). Under District of
Columbia law , “to overcome the presumption arising from [the notary’s]
certificate there must be proof of gross concurrent mistake or fraud, through
strong and disinterested evide nce.” Lewis v. Estate of Lewis , 193 A.3d 139 , 144
(D.C. 2018) (quoting Marden v. Hopkins , 47 App. D.C. 202, 206 -07 (D.C. 1918) ).
¶9 Although w e agree with the administrative judge that the existing record
does not contain sufficient evidence to rebut the presumed validity created by the
notarization , ID at 4, we find that, in the interest of justice, the appeal should be
remanded for further pro ceedings. Specifically, we find that the appellant was
not fully apprised of the presumption created by the notarization or the type of
evidence that might be sufficient to overcome it. Consequently, she may not have
fully appreciated the importance of r etaining a handwriting expert or requesting a
hearing during which she would have the opportunity to testify as to genuineness
of the signature o n the SF -2801 -2 or subpoena the notary or any disinterested
witness to testify. Because this pro se appellant was not fully apprised of her
burden on the dispositive issue and because the instant appeal concerns an
application for civil service retirement benefits, see Irvine v. Office of Personnel
Management , 83 M.S.P.R. 643 , ¶ 9 n.1 (1999) (finding that the interest in
reaching the correct result warranted some deviation from the strict adv ersarial
model of adjudication in an OPM benefits case), w e remand the appeal to the
Washington Re gional Office to give the appellant an additional opportunity to
prove her claim in light of this Order.
6
ORDER
¶10 For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
On remand, the appellant will be afforded an opportunity to rebut the presumption
of validity created by the notarization, including an additional opportunity to
elect a hearing if she so chooses.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | FORD_BETTIE_M_DC_0831_16_0647_I_1_REMAND_ORDER_1967739.pdf | 2022-10-11 | null | DC-0831 | NP |
4,039 | https://www.mspb.gov/decisions/nonprecedential/JONES_LOUIS_JACQUELYN_S_CH_0752_16_0366_I_1_FINAL_ORDER_1967831.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JACQUELYN S. JONES -LOUIS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CH-0752 -16-0366 -I-1
DATE: October 11, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jacquelyn S. Jones -Louis , Indianapolis, Indiana, pro se.
James P. Verdi , Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORD ER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal of her removal for lack of jurisdiction . Generally, we grant
petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the cas e; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not ava ilable when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petiti on for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 On or about May 2010, the appellant was removed from her po sition with
the agency as a Mail Processing Clerk. Initial Appeal File (IAF), Tab 1 at 7, 11.
On April 27, 2016, she appealed her removal to the Board and requested a
hearing. Id. at 1-3. In her appeal, the appellant noted that she was not eligible
for a veterans’ preference. Id. at 1. The administrative judge informed the
appellant of her burden to establish the Board’s jurisdiction over her appeal. IAF,
Tab 3 at 1. In response, the appellant admitted that she was not (1) eligible for a
veterans’ preference, (2) in a management or supervisory position, or (3) engaged
in personnel work other than in a purely nonconfidential capacity with 1 year of
current continuous service in the same or similar positions. IAF, Tab 6 at 4. The
appellant later amen ded her response to allege that the Board had jurisdiction
over her case because it was a mixed -case appeal involving claims of
discrimination. IAF, Tab 12 at 4 -6. On July 13, 2016, the administrative judge
dismissed her appeal for lack of jurisdiction w ithout holding a hearing, noting
that in the absence of an otherwise appeal action, claims of discrimination do not
3
confer the Board with jurisdiction to adjudicate an appeal. IAF, Tab 13, Initial
Decision (ID) at 1 -4.2
DISCUSSION OF ARGUME NTS ON REVIEW
¶3 On review , the appellant asks the Board to take jurisdiction over her appeal
on the basis that it is a mixed -case appeal involving claims of discrimination.
Petition for Review File, Tab 1 at 4 -7. The appellant also asks the Board to
consider the fact tha t the U.S. District Court for the Southern District of Indiana
found her wrongful termination claim before that court to be foreclosed by the
Civil Service Reform Act of 1978, 5 U.S.C. § 1101 et se q. Id. at 7-8; see
Jones -Louis v. Brennan , No. 1:13-cv-00762 -SEB -MJD, 2016 WL 1270179, at *4
(S.D. Ind. Mar. 31, 2016) .
¶4 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 bears the
burden of proving by preponderant evidence that her appea l is within the Board’s
jurisdiction.3 5 C.F.R. § 1201.56 (b)(2)(i)(A).
¶5 A U.S. Postal Service employee may appeal a removal action to the Board
only if she is (1) preference eligible, (2 ) a supervisory or management employee,
or (3) an employee engaged in personnel work in other than a purely
nonconfidential clerical capacity. 5 U.S.C. § 7511 (a)(1)(B) , (b)(8); 39 U.S.C.
§ 1005 (a)(4)(A) ; Hicks v. U.S. Postal Service , 114 M.S.P.R. 232 , ¶ 13 (2010) . An
appellant’s claim that her agency discriminated against her in violation of
5 U.S.C. § 2302 (b)(1) does not confer jurisdiction to the Board in the absence of
an otherwise appealable action. Hicks , 114 M.S.P.R. 232 , ¶ 13 (citing Booker v.
2 Because she found that the Board lacks jurisdiction over the appeal, the administrative
judge made no finding as to the timeliness of the appeal. ID at 1 n.2.
3 A preponderance of the evidence i s 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
U.S. Postal Service , 53 M.S.P.R. 507 , 509, aff’d , 982 F.2d 517 (Fed. Cir. 1992);
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)).
¶6 Because the appellant admitted that she was neither preference eligible, a
supervisory or management employee, nor engaged in personnel work in other
than a purely nonconfidential clerical capacity, the U.S. district court’s
sugges tion in its decision that she should have appealed her removal claim to the
Board was in error. See Jones -Louis , 2016 WL 1270179, at *4; Jones -Louis v.
Donahoe , No. 1:13 -cv-00762 -SEB -MJD , 2014 WL 4410374, at *5 (S.D. Ind.
Sept. 3, 2014) . Although the court did not adjudicate the appellant’s wrongful
termination claim, the court did adjudicate her appeal of her unfavorable Equal
Employment Opportunity Commission decision. Jones -Louis , 2016 WL 1270179,
at *5-7. Regarding that appeal, the court granted summary judgement for the
defendant because the appellant failed to present sufficient evidence
demonstrating that her removal had a discriminatory basis. Id. at *6 -7.
¶7 Accordingly, for the reasons set forth above, we deny the appellant’s
petition for rev iew and affirm the initial decision dismissing her appeal for lack
of jurisdiction.
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the n ature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appea l rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
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
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in th e dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decis ion—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your rep resentative receives this decision before you do, then you must file
7
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EE OC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2 302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your pe tition for
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the Preside nt on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent juri sdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Cir cuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants b efore the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective website s, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | JONES_LOUIS_JACQUELYN_S_CH_0752_16_0366_I_1_FINAL_ORDER_1967831.pdf | 2022-10-11 | null | CH-0752 | NP |
4,040 | https://www.mspb.gov/decisions/nonprecedential/BARRY_CHRISTOPHER_S_DC_0752_14_0040_B_2_FINAL_ORDER_1967248.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHRISTOPHER S. BARRY ,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency.
DOCKET NUMBER
DC-0752 -14-0040 -B-2
DATE: October 7, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Glenn H. Stephens, III , Esquire , Falls Church , Virginia , for the appellant .
Daniel T. Raposa , Esquire, Deborah Charette , Esquire, Rachel Wiedhaus ,
and Virginia Fritchey , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
Member Limon recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, wh ich
dismissed his alleged involuntary resignation appeal for lack of jurisdiction.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c).
2
Generally, we grant petitions such as this one only when: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to t he facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the cas e; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petiti on for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
BACKGROUND
¶2 The agency employed the appellant as the Director of its Na tional Offshore
Training and Learning Center (NOTLC) beginning in September 2011.
Barry v. Department of the Interior , MSPB Docket No. DC -0752 -14-0040 -I-1,
Initial Appeal File (IAF), Tab 1.2 After receiving the final agency decision
denying his equal emp loyment opportunity (EEO) complaint, he timely filed an
October 18, 2013 appeal in which he contended that the agency constructively
2 The Board previously remanded this appeal to the regional office for a jurisdictional
hearing because we found that the appellant had made nonfrivolous allegations that, if
proven, could establish jurisdiction over his involuntary resignation appeal. Barry v.
Department of the Interior , MSPB Docket No. DC -0752 -14-0040 -I-1, Remand Order
(Sept. 5, 2014). The administrative judge dismissed the remanded appeal without
prejudice to allow the agency to reassign the case to another attorney. Barry v.
Department of the Interior , MSPB Docket No. DC -0752 -14-0040 -B-1, Remand Initial
Decision (Feb. 10, 2015). In accordance with the administrative judge ’s instructions,
the appeal was then automatically refile d. Barry v. Department of the Interior , MSPB
Docket No. DC -0752 -14-0040 -B-2, Remand File, Tabs 1, 3.
3
discharged him , effective June 27, 2012, due to a hostile work environment and
discrimination based on sex, sexual orientat ion, and EEO activity. IAF, Tabs 1,
10. The administrative judge , in an initial decision, dismissed the appeal for lack
of jurisdiction , and we remanded it to the regional office for a jurisdictional
hearing because we found that the appellant had made n onfrivolous allegations
that, if proven, could establish jurisdiction over his involuntary resignation.
Barry v. Department of the Interior , MSPB Docket No. DC -0752 -14-0040 -I-1,
Remand Order (Sept. 5, 2014).
¶3 On remand, the administrative judge held a hearing and again dismissed the
appeal for lack of jurisdiction , finding that the appellant failed to establish that
the agency coerced his resignation by subjecting him to a hostile work
environment . Barry v. Department of the Interior , MSPB Docke t No. DC -0752 -
14-0040 -B-2, Remand File (B -2 RF), Tab 22, Remand Initial Decision (RID)
at 22. The administrative judge found that the witnesses who testified in support
of the appellant were credible but that the appellant, despite his “clear, direct, and
straightforward manner,” was not credible because “key points of his testimony
[were] either inherently improbable or contradicted by other record evidence.”
RID at 20.
¶4 For example, the administrative judge found that the coworkers who the
appellant id entified as using slurs involving his sexual orientation in
December 2011 provided credible and unrebutted testimony that they did not
make the alleged slurs and that they were unaware of his sexual orientation until
after he filed his June 2012 EEO compla int. RID at 7, 20. In finding that the
appellant’s allegations in this regard were inherently improbable, t he
administrative judge also cited the appellant’s consistent unwillingness to identify
to his supervisor s the coworkers whom he claimed he overheard making the slurs ,
as well as the credible testimony of several employees that they never heard
anyone do so in their presence. RID at 7, 9 -10, 12, 15 , 18-20. Similarly, the
administrative judge found the appellant’s contention that employees ha d
4
maligned the NO TLC and were boycotting its programs was without support in
the record and, in any event , did not constitute working conditions so intolerable
that a reasonable person in the appellant’s situation would have felt compelled to
resign . RID at 7, 9 -10, 12, 15, 19 -20, 23.
¶5 In his petition for review, the appellant contends that the agency’s
represent ative intimidated his witnesses and that agency witnesses lied
concerning whether the agency would either drop its investigation or pursue
crimin al char ges against him if he resigned or stepped down. Remand Petition for
Review (RPFR) File, Tab 1 at 4, Tab 2 . He challenges the agency’s investigation
into his alleged misconduct and claims that the agency detailed him to work for
the supervisor abou t whom he had complained. RPFR File, Tab 1 at 4-5. He
argues that the administrative judge erroneously bifurcated the hearing and also
improperly limited it to 1 day, preventing him from introducing testimony
regarding his medical condition. Id. at 5. He further claims that the
administrative judge improperly denied some of his witnesses and erroneously
assessed the credibility of the testimony and the weight of the evidence before
him. Id. at 5-6. The agency submits a detailed opposition to t he appellant’s
petition for review, including excerpts from the hearing transcript , and the
appellant replies in opposition to the agency’s response. RPFR File, Tabs 8 -10.3
3 After the record on review c losed, the appellant filed five motions for leave to file an
additional plea ding. RPFR File, Tabs 14, 17, 20, 27 , 30. The Board’s regulations do
not provide for pleadings other than a petition for review, a cross petition for review, a
response to the petition for review or cross petition for review, and a reply to a resp onse
to a petition for review . 5 C.F.R. § 1201.114 (a). For the Board to consider a party’s
pleading, other than one of those set forth above, the party must describe the nature and
need for the pleading. 5 C.F.R. § 1201.114 (a)(5). If a party wishes to submit a
pleading after the record is closed, the party must show that the evidence is new, i.e.,
that it was not readily available before the record closed , and ma terial . 5 C.F.R.
§ 1201.114 (a)(5), (k). To the extent that the appellant’s motions request to file
supplemental pleadings to challenge the veracity of testimony in this appeal , RPFR File,
Tab 14 at 1 -2, Tab 20 at 4 -5, Tab 30 at 4, we observe that evidence offered merely to
impeach a witness ’s credibility , even if new, is not general ly considered material
evidence . Setevage v. Department of Defense , 77 M.S.P.R. 120 , 124 (1997). To the
extent that the appellant’s motions request to file supplemental arguments concern ing
5
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 Although the Board has jurisdiction to review a n employee ’s removal under
5 U.S.C. §§ 7701 and 7512, its jurisdiction does not exten d to an employee ’s
resignation, which is presumed to be voluntary unless he establishes that the
resignation was involuntary and, therefore, tantamount to a constructive removal.
See Garcia v. Department of Homeland Sec urity , 437 F.3d 1322 , 1324 (Fed. Cir.
2006) (en banc) ; see, e.g., Freeborn v. Department of Justice , 119 M.S.P.R. 290 ,
¶ 9 (2013) . The employee bears the burden of proving involuntariness by a
preponderance of the evidence and must, as a threshold matter, assert
nonfrivolous allegations that, if proven, would establish the Board ’s jurisdiction.
See Garcia , 437 F.3d at 1344; see also 5 C.F.R. § 1201.56 (b)(2)(i)(A).
¶7 One means by which an appellant may overcome the presumption of
voluntariness is by showing that the resignation was obtained by agency
misinformation or deception. See, e.g. , Freeborn , 119 M.S.P.R. 290 , ¶ 9. When
the employee alleges , as here, that the agency took actions that made working
conditions so intolerab le that the employee was driven to an involuntary
resignation, the Board will find an action involuntary only if the employee
demonstrates that the employer engaged in a course of action that made working
conditions so difficult or unpleasant that a reason able person in that employee ’s
the Board’s interpretation of a case decide d before the close of the record below, RPFR
File, Tab 17, such arguments are not new. Cf. Clay v. Department of the Army , 123
M.S.P.R. 245 , ¶ 6 (2016) (stating 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). Concerning the appellant’s motion to supplement his petition with
allegation s of a hostile work environment, although the appellant’s motion to
supplement his petition for review describes “continued harassment” by the responsible
agency official and “continued bullying and threatening activity” by the agency’s
Office of the Solicitor, because this is an involuntary resignation appeal, to be relevant
any such activity must have occurred before the resignation that is the subject of the
appeal, whic h occurred not only before the close of the record but before the filing of
the appeal. RPFR File, Tab 27 at 4-5. We accordingly DENY the appellant’s motions
for failure to satisfy the criteria for additional filings on review beyond those provided
for i n the Board’s regulations. 5 C.F.R. § 1201 .114 (a)(5), (k).
6
position would have felt compelled to resign. See, e.g., Vitale v. Department of
Veterans Affairs , 107 M.S.P.R. 501 , ¶ 20 (2007). To rebut the presumption of
voluntariness, an employee must show that: (1) the agency effe ctively imposed
the terms of his resignation ; (2) the employee had no realist ic alternative but to
resign ; and (3) the employee ’s res ignat ion was the result of improper acts by the
agency. See, e.g., Shoaf v. Department of Agriculture , 260 F.3d 1336 , 1341 (Fed.
Cir. 2001) (citing Fruhauf S outhwest Garment Co. v. United States , 111 F. Supp.
945, 951 (Ct. Cl. 1953) ); Staats v. U.S. Postal Service , 99 F.3d 1120 , 1124 (Fed .
Cir. 1996) . The Board addresses allegations of discrimination and reprisal in
connection with an alleged involuntary resi gnation only insofar as those
allegations relate to the issue of voluntariness. Vitale , 107 M.S.P.R. 501 , ¶ 20.
¶8 We agree with the administrative judge that the appellant failed to establish
jurisdiction over his involuntary resignation appeal. RID at 22 -25. Although the
administrative judge wrote that the appellant failed to allege that his resignation
was the product of agency mi sinformation, RID at 22, the initial decision cites his
testimony that his supervisor told him that if he resigned there would be no
criminal charges filed against him , and the investigation would go away, RID at
8, 14 , 21. Nevertheless, we agree with the administrative judge that the appellant
failed to establish that his resignation was procured by agency misinformation or
deception because the record shows that the appellant’s supervisor acted quickly
to disabuse the ap pellant of his mistaken impression that the agency offered to
drop the allegations against him i f he stepped down as Director of the NOTLC.
RID at 21 -22; B-1 RF, Tab 18 at 63 ; see Shoaf , 260 F.3d at 1341 . The Board
must defer to an administrative judge ’s credibility determinations when they are
based, explicitly or implicitly, on observ ing the demeanor of witnesses testifying
at a hearing; the Board may overturn such determinations only when it has
“sufficiently sound ” reasons for doing so. Haebe v. Depa rtment of Justice ,
288 F.3d 1288 , 1301 (Fed. Cir. 2002) . The administrative judge found that the
appellant’s testimony regarding this episode w as not credible , and the appellant
7
fails to identify sufficient reasons on review for us to revisit the administrative
judge’s well -explained conclusions. RID at 21.
¶9 We also agree with the administrative judge that the appellant failed to
show that the agency imposed the terms of his resignation. RID at 22 -23; see
Shoaf , 260 F.3d at 1341 . The administrative judge found that the record instead
reflected that the appellant dictated the terms of his resignation in a series
of email messages in May and June 2012 in which he defended his tenure as
Director of the NOT LC and reiterated his contentions of a hostile work
environment. B-1 RF, Tab 10 at 130 -32. Moreover, the administrative judge
correctly notes that the evidence shows that the appellant not o nly selected the
date of his resignation but that he also subsequently changed it, announcing in his
June 22, 2012 email that he would resign effective immediately rather than wait
until June 30 , 2012, as he had notified the agency in May. Id.; RID at 22 -23.
¶10 We further agree with the administrative judge that the appellant failed to
show that a reasonable person in his position would have no realistic alternative
but to resign. RID at 23 -24. The appellant could have continued to pursue his
EEO matter o r waited for the outcome of the agency’s investigation into whether
he had created a hostile working environment for some of his subordinates at the
NOTLC, but he decided to resign instead. To be sure, the appellant does not
describe circumstances that ar e easy to abide , and, although the agency had not
proposed an adverse action , one certainly could have resulted from the
circumstances presented . Nevertheless, the fact that an employee is faced with
the unpleasant choice of either resigning or opposing a potential removal action
does not rebut the presumed voluntariness of his ultimate choice of resignation .
Schultz v. United States Navy , 810 F.2d 1133 , 1136 -37 (Fed. Cir. 1987).
Moreover, the administrative judge specifically based his determination on the
testimony before him , and the appellant identifies no sufficiently sound reason in
his petition for review to discount the administrative j udge’s well -explained,
8
demeanor -based credibility determinations. RID at 23 -24; Haebe , 288 F.3d
at 1301 .
¶11 We also agree with the administrative judge that the appellant failed to
show that his resignation was the result of impro per acts by the agency. R ID
at 24-25. Although the appellant complains on review about the agency’s
investigation into a subordinate’s claim that he fostered a hostile work
environment, RPFR File, Tab 1 at 4-6, the administrative judge considered the
agency’s reasons for conducti ng the investigation and did not find it was
improper or unjustified, RID at 13, 16 -18. The appellant also failed to show that
the agency promised him that it would drop the investigation if he stepped down ,
and as the administrative judge observed, the f irst instance of any discussion of
resignation came from the appellant himself, not the agency. RID at 24; B-1 RF,
Tab 10 at 130 -32. Further , regarding this claim , the record 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 3 -5;
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 & Human Services , 33 M.S.P.R.
357, 359 (1987) (same).
¶12 As for the appellant’s contention on review that the agency’s representative
intimidated his witnesses, the appellant fails to identify any evidence in support
of his assertion. RPFR File, Tab 1 at 4. Moreover, the record does not reflect
that the appell ant raised this argument below. The record similarly reflects that
the appellant failed to object below to the administrative judge’s denial of some
of his requested witnesses. See, e.g., Tarpley v. U.S. Postal Service , 37 M.S.P.R.
579, 581 (1988) ( finding that the appellant ’s failure to timely object to rulings on
witnesses precludes his doing so on petition for review ). The appellant also fails
to support his contention that certain witnesses lied under oath and therefore
9
fails to provide sufficient reason for us to revisit the administrative judge’s
demeanor -based credibility findings concerning those witnesses . RID at 19-21;
see Haebe, 288 F.3d at 1301. Regarding the bifurcation of the hearing and the
administrative judge’s decision to limit the hearing to 1 day, such decisions are
committed to the considerable discretion of the administrative judge , and
bifurcation is an appropriat e means of adjudication in cases like this where the
issue of jurisdiction is dispositive. See, e.g., Stein -Verbit v. Department of
Commerce , 72 M.S.P.R. 332 , 339 -40 (1996) . The appellant fails to show that the
administrative judge abused his considerable discretion in this regard.
¶13 Accordingly , we affirm the initial decision finding that the appellant failed
to establish ju risdiction over his involuntary resignation appeal.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono re presentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC revie w of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
11
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your represe ntative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any require ment of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 2001 3
12
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Boar d’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
13
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennif er Everling
Acting Clerk of the Board | BARRY_CHRISTOPHER_S_DC_0752_14_0040_B_2_FINAL_ORDER_1967248.pdf | 2022-10-07 | null | DC-0752 | NP |
4,041 | https://www.mspb.gov/decisions/nonprecedential/GREER_ROGER_E_SF_0752_15_0869_I_1_FINAL_ORDER_1967269.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROGER E. GREER,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
SF-0752 -15-0869 -I-1
DATE: October 7, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Brook L. Beesley , Alameda, California, for the appellant.
Kim E. Dixon , Scott Air Force Base , Illinois, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained 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 ma terial 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial de cision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not es tablished any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decis ion. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant held the position of Firefighter, which is a testing designated
position subject to random drug testing. Initial Appeal File (IAF), Tab 4 at 130,
135. On April 16, 2015, the appellant tested positive for illegal drug s. Id.
at 117-18, 121 -22. Effective August 31, 2015, the agency removed him based on
the charge of illegal drug use. Id. at 13, 114.
¶3 The appellant filed a Board appeal of his removal a nd requested a hearing.
IAF, Tab 1. He raised claims of a violation of due process, harmful procedural
error, disability discrimination, reprisal for protected equal employment
opportunity (EEO) activity, and disparate penalties. IAF, Tab 1 at 2, Tab 15
at 3-4, Tab 20 at 1-3, Tab 26 at 2 -3. Both t he agency and the appellant filed
motion s to compel discovery . IAF, Tab 16 at 4-5, Tab 18. The administrative
judge denied the appellant’s motion to compel because he found that the agency
had responded sufficiently to the appellant’s discovery requests . IAF, Tab 20
at 4. The agency filed a second motion to compel and a request for sanctions .
IAF, Tab 23 at 4-6. The administrative judge granted the agency’s motion to
compel and ordered the a ppellant to respond to its discovery requests . IAF,
Tab 24. The administrative judge warned the appellant that his failure to comply
3
would result in sanctions. Id. Thereafter, t he agency filed a motion for sanctions
claiming that the appellant had fail ed to comply with the discovery order . IAF,
Tab 28 at 4-6.
¶4 On the day before the scheduled hearing, the appellant, through his
representative, waived his right to a hearing and requested that the initial decision
be based on the written record . IAF, Ta b 29. In a close of record order, the
administrative judge granted the agency’s motion for sanctions based on the
appellant’s continued failure to respond to its discovery requests . IAF, Tab 31.
Specifically, the administrative judge prohibited the appellant from
supplementing the record . Id. He also rejected the appellant’s submission of
deposition transcripts . Id.
¶5 The administrative judge issued an initial decision affirm ing the appellant’s
removal . IAF, Tab 33, Initial Decision (ID) at 1, 9. The administrative judge
made the following findings: (1) the agency proved its charge of illegal drug use;
(2) the appellant failed to prove his affirmative defenses of a violation of due
process, harmful procedural error, disability discrimination, and reprisal for EEO
activity; (3) the agency established that the penalty promotes the efficiency of the
service , considered the relevant Douglas factors,2 and proved the reasonableness
of the penalty ; and ( 4) the appellant failed to establish a disparate penalties claim .
ID at 4 -9.
¶6 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response. PFR File, Tab 3. The appellant has
filed a reply. PFR File, Tab 4.
2 In Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305 -06 (1981), the Board
articulated a nonexhaustive list of 12 factors that are relevant in assessing the penalty to
be imposed for an act or acts of misconduct.
4
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 In his petition for review, th e appellant does not challenge the
administrative judge’s findings on the merits of his removal appeal. PFR File,
Tabs 1, 4. Based on our review of the record, we agree with the administrative
judge’s findings and fi nd no reason to disturb the initial decision.
¶8 The appellant instead argues that the administrative judge abused his
discretion by sanction ing the appellant for not responding to the agency’s
discovery requests, rejecting the appellant’s submission of depos ition transcripts ,
and denying the appellant’s motion to compel . PFR File, Tabs 1, 4. For the
following reasons, we find that the administrative judge did not abuse his
discretion regarding these rulings .
¶9 An administrative judge may impose sanctions upon a party as necessary to
serve the ends of justice. Smets v. Department of the Navy , 117 M.S.P.R. 164 ,
¶ 11 (2011) , aff’d per curiam , 498 F. App’x 1 (Fed. Cir. 2012) ; 5 C.F.R.
§ 1201.43 . Before imposing a sanction, the administrative judge must provide
appropriate prior warning, allow a response to the actual or proposed sanction
when feasible, and document the reasons for any resulting sanction in the record.
5 C.F.R. § 1201.43 . When a party fails to comply with an order regarding
participation in the discovery process , the administrative judge may p rohibit the
noncomplying party from introducing evidence co ncerning the information
sought . Smets , 117 M.S.P.R. 164 , ¶ 11; 5 C.F.R. § 1201.43 (a)(2). Once an
administrative judge imposes a sanction, the Board ordinarily will not disturb
such a determination unless it is shown that the administrative judge abused his
discretion or that his r uling adversely affected a party’s substantive rights.
Wagner v. Department of Homeland Security , 105 M.S.P.R. 67 , ¶ 9 (2007) .
¶10 Here, we find that the administrative judge acted within his discretion to
impose a discovery -related sanction . See Smets , 117 M.S.P.R. 164, ¶ 12 (finding
that the administrative judge did not abuse her discretion when she precluded the
appellant from submitting additional evidence regarding a discrimination claim
5
after the appellant did not comply with her order to appear for a deposition );
Wagner , 105 M.S.P.R. 67, ¶ 15 (finding that an appropriate sanction for the
appellant’s failure to respond to the agency’s discovery requests would have been
to preclude the appellant from presenting evidence related to the disputed
discovery requests ).
¶11 The appellant claims that the administrative judge ignored his response in
opposition to the agency’s motion for sanctions in the initial decision. PFR File,
Tab 1 at 5; IAF, Tab 30 . However, t he administrative judge’s failure to mention
the appellant’s response does not mean that he did not consider it. Marque s v.
Department of Health & Human Services , 22 M.S.P.R. 129 , 132 (1984), aff’d ,
776 F.2d 1062 (Fed. Cir. 1985) (Table). The appellant als o asserts that he could
not have complied with the administrative judge’s discovery order because he had
nothing more to submit in response to the agenc y’s discovery requests . PFR File,
Tab 4 at 3; IAF, Tab 30 at 2. Even if the appellant had no additional responsive
documents, the agency’s interrogatories sought information that the appellant
would certainly have known , such as the medication he was taking and the
coworkers he deem ed comparators for his disparate penalty argument.3 IAF,
Tab 23. Thus, the appellant failed to respond to the discovery requests , and the
administrative judge properly imposed sanctions.4
¶12 Further, t he appellant argues that the administrative judge failed to provide
notice of the broad scope of the sanction . PFR File, Tab 1 at 4-5, Tab 4 at 2. We
agree that the administrative judge failed to notify the appellant that his failure to
comply with the discovery order would result in a complete prohibition on
3 The administrative judge granted the agency’s motion to compel regarding b oth
interrogatories and requests for production but indicated that the sanction for a failure
to comply would be the preclusion of the introduction of documents. IAF, Tab 24.
4 The appellant claims that the administrative judge’s rejection of his submis sion of
deposition transcripts was part of the imposed sanction. PFR File, Tab 1 at 3. We
disagree and, as discussed below, analyze the rejection of deposition transcripts as an
exclusion of evidence.
6
supplementing the record . Instead, the administrative judge notified the appellant
that he would not be permitted to introduce into the record any of the documents
requested by the agency. IAF, Tab 24. However, the appellant does not expl ain
what evidence he would have submitted that was unrelated to the agency’s
discovery requests had he not been barred from doing so by the sanction . Thus,
the appellant has not shown how any error by the administrative judge prejudiced
his rights. See K arapinka v. Department of Energy , 6 M.S.P.R. 124 , 127 (1981).
Moreover, the appellant provide s no support for his argument , and we know of
none, that he had a “substantive right” to make a final submission under 5 C.F.R.
§ 1201.59 (b). PFR File, Tab 4 at 2.
¶13 Additionally, t he appellant contends that the administrative judge failed to
determine whether he exhibited negligence or bad faith when he waived his right
to a hearing ; however , the reason for the imposed sanction was related to
discovery matters and not to the appellant’s decision to forego the scheduled
hearing. PFR File, Tab 1 at 5 ; IAF, Tab 31 . Also, the appellant’s reference to
“negligence or bad faith” applies to the standard for imposing the more severe
sanction of dismissal of an appeal with prejudice , which is inapplicable here .
Williams v. U.S. Postal Servi ce, 116 M.S.P.R. 377 , ¶ 7 (2011).
¶14 Next, the appellant contests the administrative judge’s reject ion of his
submission of deposition transcripts. PFR File, Tab 1 at 4-6. 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). The Board has held that, to obtain reversal of an
initial decision on the ground that the administrative judge abused his discretion
in excluding evidence, the petitioning party must show on review that relevant
evidence, whi ch could have affected the outcome, was disallowed. Sanders v.
Social Security Administration , 114 M.S.P.R. 487 , ¶ 10 (2010).
7
¶15 Here, t he appellant alleges that the deposition transcripts are relevant to his
claims of harmful procedural error and “disparate treatment and penalty.”5
PFR File, Tab 1 at 5 -6. Based on the appellant’s description of the relevant
evidence in the deposi tion transcripts, we find that he has failed to show that such
evidence could have affected the outcome of the appeal when the record below
already contains copies of the agency’s policies and table of penalties. IAF,
Tab 4 at 41-99, 141 -66. We also find that, contrary to the appellant’s argument
that the administrative judge violated 5 C.F.R. § 1201.61 by not describing the
excluded evidence , this regulation does not apply to this case because the
evidence was not excluded at a hearing . PFR File, Tab 1 at 4 ; cf. Gaither v.
Defense Commissary Agency , 85 M.S.P.R. 338, ¶ 8 (2000) (finding that the
administrative judge erred by failing to describe what evidence was excluded
during the hearing ). The appellant further argues that the administrative judge
previously accept ed the deposition transcripts into the record . However , the
appellant does not dispute the agency’s contention that the administrative judge
only intended to allow the appellant to use the deposition transcripts for
impeachment purposes during the hearing. PFR File, Tab 3 at 11-12, Tab 4 at 3.
¶16 Finally, the appellant opposes the administrative judge ’s deni al of his
motion to compel discovery. PFR File, Tab 4 at 3. The Board will not reverse an
administrative judge ’s rulings on discovery matters, including a motion to
compel, absent an abuse of discretion. Fox, 120 M.S.P.R. 529 , ¶ 42. Here, the
administrative judge determined that the agency had responded sufficiently to th e
appellant’s discovery requests and thus, denied his motion to compel discovery .
5 Our decision in Singh v. U.S. Postal Service , 2022 MSPB 15 , ¶ 14, issued after the
initial decision in this appeal, clarifies that the relevant inquiry for assessing a claim of
disparate penalties when weighing the reasonableness of a penalty is whether the
agency knowingly and unjustifiably treated employees who engag ed in the same or
similar offenses differently. There is no evidence in the record to indicate that the
agency did so in this case, nor do we discern any basis to disturb the administrative
judge’s finding that the appellant failed to prove his disparate penalties claim. ID
at 8-9.
8
IAF, Tab 20 at 4 . The appellant has shown no error in that determination, and
therefore, he has shown no abuse of discret ion in the denial of discovery.
¶17 Accordingly, we fin d that the appellant has failed to provide a reason to
disturb the initial decision that sustained his removal.
NOTICE OF APPEAL RIG HTS6
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the followin g summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding whic h cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particula r forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with t he U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
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 appropri ate in any matter.
9
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional in formation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EE OC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination . If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar day s after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decisi on before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
10
discrimination based on race, color, religion, sex, national origin, or a disab ling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
11
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) ot her than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the Pres ident on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent j urisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | GREER_ROGER_E_SF_0752_15_0869_I_1_FINAL_ORDER_1967269.pdf | 2022-10-07 | null | SF-0752 | NP |
4,042 | https://www.mspb.gov/decisions/nonprecedential/WILKINS_WILLIAM_A_DC_0752_17_0238_I_1_REMAND_ORDER_1967278.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WILLIAM A. WILKINS,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DC-0752 -17-0238 -I-1
DATE: October 7, 2022
THIS ORDER IS NONPRECEDENTIAL1
William A. Wilkins , Hanau, Hessen, Germany, pro se.
Scott Stauffer , APO, AE, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal as untimely. For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision , and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
REMAND the case to the regional offic e for further adjudication in accordance
with this Order.
BACKGROUND
¶2 On January 9 , 2017 , the appellant , appearing pro se , filed an appeal
challenging the agency’ s action removing him effective October 15 , 2016. Initial
Appeal File (IAF) , Tab 1 . On his ap peal form, the appellant certified as true that
he received the removal decision on December 12, 2016 , and he indicated that he
did not want a hearing on his appeal . Id. at 2-3, 7. Because the appeal appeared
to have been untimely, the administrative jud ge ordered the appellant to show that
the appeal was timely filed or that he had good cause fo r his untimely filing.
IAF, Tab 3 . The appellant did not respond to the timeliness order .
¶3 The agency responded to the order by moving that the appeal should be
dismissed because the appellant filed his appeal long after the filing period
expired . IAF, Tab 6 at 6. In support of its motion, the agency provided a
stamped U.S. Postal receipt, confirming that the removal decision letter was
mailed to the appellant’s forwarding address on October 13, 2016 . Id. at 19-20.
However, the agency did not provide any documentation confirming delivery. A
search on the U.S. Postal Service website, usps.com , of the tracking number on
the postal receipt revealed that the letter was “return[ed] to sender” without
explanation.2 The U.S. Postal Service returned it to the agency on October 20,
2016.
¶4 The administrative judge issued an initial decision, dismiss ing the appeal as
untimely filed without good cau se shown . IAF, Tab 7, Initial Decision (ID) at 3.
She found that the decision letter notified the appellant with notice of his appeal
rights and instructions for timely filing his appeal, and that the effective date of
2 Although the U.S. Postal Service tracking report is not part of the record, it is publicly
available and therefore we take official notice of it. See 5 C.F.R. § 1201.64 (providing
that an administrative judge may take official notice of matters of common knowledge
or that can be verified).
3
his re moval was October 15, 2016 . The administrative judge also found that the
appellant’s appeal was untimely filed on January 9 , 2017 . ID at 1, 3. The
administrative judge found , moreover, that the appellant failed to support his
claim that he did not receive the removal decision until December 12, 2016, or to
otherwise show good cause for his filing delay. ID at 3.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response in opposition to his petition, and the
appellant has filed a reply. PFR File, Tab s 4-5.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 On review, t he appellant argue s that his filing delay was cau sed by a
medical condition and he submits supporting medical documentation with his
petition . PFR File, Tab 1 at 2-19, Tab 5 at 2-5. In response, t he agency argues
that the Board should deny the petition f or review because the appellant failed to
respond to the administrat ive judge’s timeliness order, and he has not shown that
the evidence he submits on review is new and material or previously unavailable.
PFR File, Tab 4 at 6-7. Although the appellant di d not respond to the
administrative judge’s order regarding timeliness, we find that the record on
appeal was sufficient to conclude that his appeal was timely filed for the reasons
discussed below. Thus, we need not consider the appellant’s evidence and
argument on review that his medical condition provided good cause to waive the
filing deadline. See 5 C.F.R. § 1201.11 5(d) (providing that a petition for review
may be granted based on a showing that new and material evidence is available
that, despite the petitioner’s due diligence, was not available when the record
closed) ; see also Lacy v. Department of the Navy , 78 M.S.P.R. 434 , 437 (1998)
(setting forth the elements that a party must prove to establish that an untimely
filing was the result of an ill ness).
¶7 To be timely, an appellant must file his appeal within 30 calendar days after
the effective date of the challenged action or receipt of the agency’s decision,
4
whichever is later. See 5 C.F.R. § 1201.22 (b)(1). Properly addressed
correspondence sent to the appellant via postal or commercial delivery generally
is presumed to have been duly delivered to the addressee. See 5 C.F.R.
§ 1201.22 (b)(3).
¶8 Here , the appellant stated on his appeal form that he received the agency’s
removal decision letter on December 12, 2016 . IAF, Tab 1 at 3. H e also averred
that the contents of his appeal form were true . Id. at 7. The administrative judge
dismissed the appeal as untimely filed based in part on the appellant’s failure to
respond to her timeliness order . ID at 3. In dismissing the appeal, however, the
admi nistrative judge did not explicitly identify the appellant’s deadline for
appealing his removal to the Board . Thus, the basis for the administrative judge’s
finding that the appeal was untimely filed is unclear. Nonetheless, i t appears that
she found that the agency delivered the removal decision letter to the appellant
before the October 15, 2016 removal date identified in the letter, and that he
should be de emed to have received it before the December 12, 2016 receipt date
that he certified on his a ppeal form . ID at 3.
¶9 We disagree with the administrative judge’s finding that this appeal was
untimely filed because there is no evidence in the reco rd either that the appellant
received the removal decision before the effective date of his removal or
discrediting his certification on his appeal form that he received the removal
decision on December 12, 2016. Although the Board generally presumes that
documents placed in the mail are received in 5 days , that presumption was
rebutted here by the appellan t’s certified statement that he received the decision
later . See Cabarloc v. Department of Veterans Affairs , 110 M.S.P.R. 695, ¶¶ 7-8
(2009) ; 5 C.F.R. § § 1201.22 (b)(3) , 1201.23 . Moreover , as stated above, the
decision letter that the agency sent to the appellant on October 13, 2016, was
returned . IAF, Tab 6 at 19. The agency submitted no proof of delivery . Based
on the record, we therefore find that the appellant proved that he receive d the
decision letter on December 12, 2016 , requiring that he file his appeal on or
5
before January 11, 2017 , within 30 days of receiving the decision. See 5 C.F.R.
§ 1201.22 (b)(1). The appellant filed his appeal on January 9, 2017 , before the
filing deadline . Accordingly, we find that his appeal was timely fil ed.
ORDER
¶10 For the reasons discussed above, we vacate the initial decision and remand
this case to the Board’s Washington Regional Office for further adjudication in
accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WILKINS_WILLIAM_A_DC_0752_17_0238_I_1_REMAND_ORDER_1967278.pdf | 2022-10-07 | null | DC-0752 | NP |
4,043 | https://www.mspb.gov/decisions/nonprecedential/ROYAL_KENNETH_AT_0752_14_0853_I_1_FINAL_ORDER_1967283.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KENNETH ROYAL,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
AT-0752 -14-0853 -I-1
DATE: October 7, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lorenzo Cobb , Esquire, Sugarhill, Georgia, for the appellant.
Erika F. Campbell -Harris , Esquire, Atlanta , Georgia, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Membe r
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his appeal of an alleged involuntary disability
retirement . Generally, we grant petitions such as this one only when: the initi al
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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during eith er
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
BACKGROUND
¶2 The appellant held the position of Mail Processing Clerk at the agency’s
North Metro Processing and Distri bution Center in Duluth, Georgia. Initial
Appeal File (IAF), Tab 5 at 11 8, Tab 11 at 134 . His position required that he be
able to perform prolonged standing, walking, bending, and reaching . IAF, Tab 5
at 116.
¶3 In September 2013, the appellant made multi ple requests for a change in his
work schedule and attached a letter from his psychiatrist supporting the requested
schedule change based on the appellant’s mental health issue and obstructive
sleep apnea. Id. at 72 -73, 77 -80. The agency denied his reque sts based on
insufficient documentation. Id. at 72, 77, 79. The agency referred his request to
the agency’s District Reasonable Accommodation Committee (DRAC) , which
considered it a request for a reasonable accommodation . Id. at 71 -72. After the
appellant’s meeting with the DRAC in October 2013 , the DRAC chairperson sent
him a list of current, vacant, and funded position s in the Atlanta district for which
he could apply . Id. at 61-70. The appellant declined the job offers and stated, “I
3
am not a ble to fully respond to the recommendation because I have not been
provided all the pertinent information related to the available job openings.” Id.
at 59-60. In response , the DRAC chairperson informed the appellant that, based
on his decision to declin e the job offers, his reasonable accommodation case was
considered closed. Id. at 37. The appellant then made another request for the
schedule change to an agency Human Resources Manager . Id. at 44. The Human
Resources Manager denied his request because he had been given the opportunity
to select from positions that would have provided him the requested
accommodation. Id. at 27. The appellant replied. Id. at 21 -25.
¶4 In December 2013, the appellant applied for Social Security Disability
Insurance (SSDI) benefits and listed that he had a mental health issue in addition
to various physical conditions concerning his feet, ankles, toes, knees, and
elbow s. Id. at 100-04. He also stated that his “duties and responsibilities have
become a daily challen ge” due to “constant pain” and that “standing for 8 hours is
very painful and discomforting.” Id. at 110. The Social Security Administration
(SSA) granted the appellant’s application for SSDI benefits . IAF, Tab 10,
Subtab E at 1.
¶5 On January 7, 2014, the appellant had surgery on his left foot that rendered
him unable to stand continuously for 8 hours for approximately 3 months . IAF,
Tab 5 at 140-41. He applied for disability retirement to the Office of Personnel
Management (OPM) and stated that he becam e disabled on January 7, 2014 , due
to foot surgery . Id. at 112. In addition to listing a mental health issue with sleep
apnea as one of his injuries or diseases , he listed injuries to his back, ankles, feet,
toes, left elbow (tendonitis), and knees. Id. The appellant alleged that the
injuries to his feet, ankles, toes, and knees affected his basic job duties and
responsibilities of standing, walking, and pulling and pushing equipment. Id. He
also claimed that he could not work at the required pace or bend down properly .
Id. OPM approved his application for disability retirement, which was e ffective
August 18, 2014. IAF, Tab 11 at 132-34. OPM found that the appellant was
4
disabled for his position “due to Back Injury, Ankles L/F, Foot (Right and Left).”
IAF, Tab 10 , Subtab F at 2.
¶6 The appellant filed a Board appeal of his alleged involuntary disability
retirement and requested a hearing. IAF, Tab 1. After holding a jurisdictional
hearing, the administrative judge issued an initial decision dism issing the ap peal
for lack of jurisdiction. IAF, Tab 18, Initial Decision (ID) at 1, 10 . Specifically,
she found that the appellant failed to prove that his disability retirement was
involuntary because he did not make a request for an accommodation for his
disabling medical conditions that would have allowed him to continue working.
ID at 9 -10.
¶7 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response. PFR File, Tab 4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶8 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation . Maddox v. Merit Systems
Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). An employee -initiated action,
such as a retirement, is presume d to be voluntary and therefore outside the
Board’s jurisdiction. Vitale v. Department of Veterans Affairs , 107 M.S.P.R. 501 ,
¶ 17 (2007). An involuntary retirement is tantamount to a removal, however, and
is ther efore subject to the Board’s jurisdiction. Id. The appellant bears the
burden of proving jurisdiction by a preponderance of the evidence. 5 C.F.R.
§ 1201.56 (b)(2)(i)(A).
¶9 To establish the Board’s jurisdiction ov er an involuntary disability
retirement appeal, the appellant must show that: (1) he indicated to the agency
that he wished to continue working but that his medical limitation s required a
modification of his work conditions or duties, i.e., accommodation; (2) there was
a reasonable accommodation available during the period between the date on
which he indicated to the agency that he had medical limitations, but desired to
5
continue working, and the date that he was separated that would have allowed
him t o continue working; and (3) the agency unjustifiably failed to offer that
accommodation . Mims v. Social Security Administration , 120 M.S.P.R. 213 , ¶ 17
(2013).
¶10 Here, the administrative judge properly found that the appellant failed to
satisfy the first prong of the Mims test because he did not request an
accommodation for his disabling medical condition s. ID at 9. Specifically, she
found that the appellant had disabling medical conditions concerning his feet,
ankles, and back. Id.; IAF, Tab 5 at 110, 112 , Tab 10, Subtab F at 2 . She further
found it undisputed that the appellant did not seek an accommodation for these
conditions when he earlier requested a schedule change based on his sleep apnea .
ID at 7; IAF, Tab 5 at 72-73, 77 -80. Based on our review of the record, we agree
with these findings.
¶11 In his petition for review, the appellant disputes the administrative judge’s
finding that he failed to request an accommodation for disabling medical
conditions . PFR File, Tab 1 at 9. Specifically, h e alleges that he onl y needed an
accommodation for a mental health condition and for obstructive sleep apnea and
not for his foot injury . Id. He asserts that, had the agency granted the requested
schedule change, he could have con tinued working despite his foot injur y. Id.
at 8. He further claims that the only reason he applied for SSDI and disability
retirement was because the a gency previously failed to accommodate his mental
health condition and obstructive sleep apnea . Id.
¶12 The administrative judge considered these arguments and the appellant’s
supporting testimony below . However, she found that his testimony was
inconsistent with the record. ID at 7 -9; IAF, Tab 16, Hearing Compact Disc
(testimony of the appellant ). For the reasons described in the initial decision, we
agree with the administrative judge ’s finding that the appellant’s testimony was
inconsistent w ith the medical evidence and his certifications to SSA and OPM.
ID at 8 -9. For example , the administrative judge noted that the appellant
6
represented to SSA that “[f]or the last year and a half, [his] feet have become
more problematic” and that he has “n ot been able to find” shoes that do not
“cause [him] severe pain. ” ID at 8; IAF, Tab 10, Subtab E at 5 . She also noted
that the appellant certified to OPM that his “[f]eet, ankles, toes and knees affect
basic job duties/responsibilities of standing, walk ing, pushing and pulling of
equipment” and that his “[b]ack and [left elbow] affect [his] ability to bend and
lift trays over shoulder height.” ID at 8; IAF, Tab 5 at 112. Moreover, w e find
that the appellant has not provided a reason on review to disturb the
administrative judge’s determination that his testimony was belied by the
documentary evidence . 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 & Human Se rvices ,
33 M.S.P.R. 357 , 359 (1987) (same).
¶13 Lastly, we find that the appellant’s remaining arguments on review provide
no reason to disturb the initial decision. For the reasons discussed above, w e find
that the administrative judge did not, as the appellant argues, abuse her discretion
in finding that he faile d to request an accommodation for his disabling medical
conditions regarding his feet, ankles, and back . PFR File, Tab 1 at 1 , 7, 9; ID
at 9. We further find that the appellant’s claim s that the agency deprived him of
information necessary to evaluate the DRAC’s job offers , and that the agen cy
could have granted the requested schedule change without undue hardship, are
immaterial to the relevant issue of whether the appellant satisfied the first prong
of the Mims test. PFR File, Tab 1 at 5.
¶14 Accordingly, we find that the administrative judge properly dismissed the
appeal for lack of jurisdiction.
7
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determi nes the time limit for seeking such
review and 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 mu st be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
8
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are int erested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board ap pellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action inv olves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
9
to waiver of any requirement of prepayment of fees, costs, or other securi ty. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review t o the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursua nt to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
10
disposition of allegations of a pro hibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Cir cuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)( B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov /probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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, 201 8, permanently allows appel lants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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/Co urt_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ROYAL_KENNETH_AT_0752_14_0853_I_1_FINAL_ORDER_1967283.pdf | 2022-10-07 | null | AT-0752 | NP |
4,044 | https://www.mspb.gov/decisions/nonprecedential/RHEE_MIA_S_SF_0432_21_0165_I_1_FINAL_ORDER_1967329.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MIA S. RHEE,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
SF-0432 -21-0165 -I-1
DATE: October 7, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mia S. Rhee , Irvine, California, pro se.
Beth S. Heleman , Esquire , and Thomas M. Ashton , Esquire, Washington,
D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained her removal for unacceptab le performance under 5 U.S.C. § 4302 .
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error aff ected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the appellant did not meet the contributing factor standard through
means other than the knowledge/timing test , we AFFIRM the initial decision. We
also VACATE the admini strative judge’s finding that the agency established by
clear and convincing evidence that it would have taken the same actions even
absent the appellant ’s protected disclosures and activities because the appellant
failed to establish her prima facie case of whistleblower reprisal .
¶2 In front of the administrative judge, the appellant argued that the agency
retaliated against he r for filing successful Board appeals in 2008 and 20112 in
violation of 5 U.S.C. § 2302 (b)(9)(A)(i) . Hearing Recording (HR) (testimony of
the appellant); Initial Appeal File (IAF), Tab 45, Initial Decision (ID) at 83 -84.
2 In the appellant’s 2008 Board appeal, the administrative judge reversed the appellant’s
removal under chapter 43, Rhee v. Department of the Treasury , MSPB Docke t No.
SF-0432 -08-0301 -I-1, Initial Decision (Oct. 17, 2008 ), and in her 2011 Board appeal ,
the administrative judge reversed a 30 -day suspension, Rhee v. Department of the
Treasury , MSPB Docket No. SF -0752-11-0122 -I-1, Initial Decision (Apr. 13, 2011 ).
The agency filed a petition for review in both matters, and the Board affirmed the initial
decisions in both cases . Rhee v. Department of the Treasury , 117 M.S.P.R. 640 (2012),
overruled by Savage v. Department of the Army , 122 M.S.P.R. 612 (2015) , overruled in
part by Pridgen v. Office of Management & Budget , 2022 MSPB 31 , ¶¶ 23-25; Rhee v.
Department of the Treasury , MSPB Docket No. SF -0432 -08-0301 -I-1, Final Order
(Apr . 16, 2009) .
3
The administrative judge correc tly found that the appellant had engaged in
protected activity under sect ion 2302(b )(9)(A)(i) because her 2011 Board appeal
included allegations of whistleblower reprisal but that she did not meet the
contributing factor standard because she failed to satisfy the knowledge/timing
test. ID at 84. Specifically, the administrati ve judge found that the appellant’s
first-line supervisor —the proposing official —had only heard “rumors” of her
activity, there was no evidence that the deciding official knew of the appellant’s
protected activity, and there was no evidence that the appellant’s second -line
supervisor , who was the appellant’s first -line supervisor at the time of the prior
appeals and was named in those cases , “was involved in or influenced the events
at issue here.”3 Id.
¶3 We agree that the appellant does not meet the knowledge/timing test but
believe that there is a clearer basis for such a finding.4 The last of the appellant’s
3 The appe llant’s second -line supervisor was not the deciding official in this matter.
IAF, Tab 5 at 64 -67. However, on review, the appellant argues that the administrative
judge “minimized” her second -line supervisor’s “role and influence” in the decision to
place her on a Performance Improvement Plan (PIP) and to remove her . Petition for
Review File, Tab 1 at 6. We acknowledge that there is evidence in the record which
shows that the appellant’s second -line supervisor was involved in t he decisions leading
to the PIP and proposed removal , seemingly in a ministerial or advisory capacity . IAF,
Tab 20 at 22 -29. Thus, to the extent that the administrative judge’ s statement implies
that th e second -line supervisor had no awareness or involvement in the decisions
leading to the PIP and the removal , we find that to be overly broad. Nevertheless, there
is no evidence in the record that establishes that the second -line supervisor issued the
decision to remove the appellant, or that he influenced, pressured, conspired with, or
directed any individual to place the appellant on a PIP or to remove her . Accord ingly,
we do not find that the administrative judge’s statement constitutes a basis for rev ersing
the administrative judge’s findings. See Panter v. Department of the Air Force ,
22 M.S.P.R. 281 , 282 (1984) (stating that an adjud icatory error that is not prejudicial to
a party’s substantive rights provides no basis for reversal of an initial decision).
4 While we agree with the administrative judge that there is no evidence that the
deciding official, who was outside of the appellant’s chain of command, was aware of
her Board appeals, ID at 84, we find that the proposing official had knowledge of the
appe llant’s protected activity because she had heard rumors regarding the protected
activity. See Scoggins v. Department of the Army , 123 M.S.P.R. 592 , ¶ 24 (2016)
(finding that an official’s general knowledge of the appellant’s allegations of
wrongdoing was sufficient to establish the knowledge prong).
4
previous appeals was fully resolved over 8 years prior to the appellant’s
placement on a performance improvement plan (PIP) that ultimately l ed to her
removal. IAF, Tab 6 at 141-49. T hus she clearly does not satisfy the timing
prong. See Agoranos v. Department of Justice , 119 M.S.P.R. 498 , ¶ 21 (2013)
(explaining that the Board has held that person nel actions taken within 1 to
2 years of the protected disclosure satisfy the timing prong); Salinas v.
Department of the Army , 94 M.S.P.R. 54 , ¶ 10 (2003) (finding that a personnel
action occurring over 2 years after the protected disclosure was not within a
timeframe such that a reasonable person coul d conclude that the disclosure was a
contributing factor).
¶4 The Board has held that if an administrative judge determines that an
appellant has failed to satisfy the knowledge/timing test, she 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 official taking the action, or 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). Here, there is no other evidence in the
record that supports a finding that the appellant met the contributing factor
standard. The agency put forth strong evidence , in the administrative record and
at the hearing, establishing that the appellant ’s performance was r ated as
unacceptable because she consistently submitted untimely and incomplete work
that required substantial revisions . HR (testimony of the first -line supervisor,
testimony of the deciding official); IAF, Tab 5 at 152 -70, Tab 6 at 10 -149.
Furthermore, the appellant’s previous Board appeals did not name or reference
the propos ing or deciding official in this matter , and there is no evidence in the
record that these individuals had a motive to retaliate against her . Accordingly,
we modify the initial de cision to find that , even considering evidence other than
the knowledge/timing test, the appellant failed to meet the contributing factor
standard .
5
¶5 Finally, although the administrative judge correctly found th at the appellant
failed to make a prima facie c ase of whistleblower reprisal under either
section 2302(b)(8) or section 2302(b)(9) (A)(i), she found that the age ncy
established by clear and convincing evidence that it would have removed the
appellant absent her whistleblowing . ID at 80 -83. The Board m ay not proceed to
the clear and convincing evidence test unless it has first determined that the
appellant established a prima facie case of whistleblower reprisal. 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), questioned on other grounds by Delgado v. Merit
Systems Protection Board , 880 F.3d 913 (7th Cir. 2018). Accordingly, because
the appellant did n ot establish a prima facie case of whistleblower reprisal, we
vacate the administrative judge’s finding that the agency would have met the
clear and convincing test.
NOTICE OF APPEAL RIG HTS5
The initial decision, as supplemented by this Final Order, co nstitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C . § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regar ding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
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 the a pplicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a pa rticular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar da ys
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
8
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
6 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | RHEE_MIA_S_SF_0432_21_0165_I_1_FINAL_ORDER_1967329.pdf | 2022-10-07 | null | SF-0432 | NP |
4,045 | https://www.mspb.gov/decisions/nonprecedential/REID_KATRINA_DC_1221_21_0478_W_1_REMAND_ORDER_1967357.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KATRINA REID,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
DC-1221 -21-0478 -W-1
DATE: October 7, 2022
THIS ORDER IS NONPRECEDENTIAL1
Katrina Reid , Suitland, Maryland, pro se.
Amar Nair , Esquire , and David A. Organes , Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris , Vice Chair man
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision,
which dismissed her individual right of action (IRA) appeal for lack of
jurisdiction . For the reasons discussed below, we GRANT the a ppellant ’s
petition for review, AFFIRM IN PART and VACATE IN PART the initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
decisio n, and REMAND the appeal to the Washington Regional Office for further
adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant was previously employed as a GS-13 International Trade
Specialist in the Plant Division of the agency ’s Office of Trade Policy and
Geographic Affairs (TPGA) . Initial Appeal File (IAF), Tab 21 at 73.
On June 22, 2020, the agency proposed her removal based on a charge of
improper conduct, alleging that she made harassing and inappropriate statements
that caused her coworkers and supervisor to be concerned for their personal safety
and caused disruption in the workplace in violation of an agency regulation
prohibiting workplace violence. IAF, Tab 1 at 7 -12. On August 14, 2020,
the agency sustained the charge and re moved the appellant , effective
immediately. Id. at 13 -18. That decision informed the appellant that she could
challenge the removal decision by: (1) appealing directly to the Board; (2) filing
a discrimination complaint through the agency ’s equal employment opportunity
(EEO) office, followed by a mixed -case appeal with the Board; or (3) filing a
whistleblower reprisal complaint with the Office of Special Counsel (OSC) ,
followed by an IRA appeal with the Board. Id. at 16 -18. As to the first two
options, the agency advised her that whichever she filed fir st would be deemed
an election to proceed in that forum. Id. at 17.
¶3 After contacting an agency EEO counselor on August 25, 2020, the
appellant filed a formal EEO complaint on December 7, 2020. IAF , Tab 19 at 4,
Tab 21 at 48. In her formal complaint, the appellant alleg ed that she was
subjected to discrimination and harassment based on her race, color, age, sex, and
in reprisal for prior EEO activity when the agency removed her, among
other things . IAF, Tab 1 at 4, Tab 21 at 48 . The agency accepted her formal
complaint for investigation on January 22, 2021. IAF, Tab 19 at 4 -5. On
February 13, 2021, the appellant filed a complaint with OSC alleging that the
3
agency retaliated against her for her p rotected disclosures or activities by taking a
number of actions, including removing her . IAF, Tab 1 at 4, 20, Tab 7. On
April 12, 2021, OSC issued a letter notifying the appellant that it was terminating
its investigation into her complaint and informin g her that she could seek
corrective action by filing an IRA appeal with the Board. IAF, Tab 1 at 20.
¶4 The agency issued a Final Agency Decision (FAD) on the appellant ’s EEO
complaint on May 19, 2021 , concluding that “[t]he weight of the evidence
indicates neither discrimination, nor harassment occurred .” IAF, Tab 21 at 47,
68, 71. In its FAD , the agency advise d her that she could file an appeal with the
Board within 30 days . Id. at 68-71.
¶5 On June 16, 2021, t he appellant filed a Board appeal challenging her
removal. IAF, Tab 1 at 1 -6. She did not request a hearing. Id. at 2. The
administrative judge issued an acknowledgment order that identified the appeal as
an IRA appeal. IAF, Tab 3. She also issued a separate jurisdiction al order dated
June 21, 2 021, setting forth the appellant ’s burden of proving jurisdiction over
her IRA appeal and directing her to file evidence and argument on the issue,
providing a list of seven specific items relevant to the Board ’s jurisdictional
determination . IAF, Tab 4 at 2-8. Both the appellant and the agency submitted
responses to the jurisdiction al order. IAF, Tabs 7 -22. The appellant also filed a
motion requesting that the administrative judge compel the agency to respond to
her discovery requests, the agency opposed the appellant ’s motion, and the
appellant responded. IAF, Tabs 23 -25.
¶6 After the record on jurisdiction closed, the administrative judge issued
an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 26,
Initial Decision (ID) at 1, 19. The administrative judge determined that the
appellant had demonstrated that she exhaust ed with OSC her claims that
the agency subjected her to several personnel actions, including removal .
ID at 10-11. Regarding potential protected disclosure s or activities, the
administrative judge determined that the only potential disclosure identified in
4
OSC ’s close -out letter was the appellant ’s claim that she expressed disagreement
with her supervisor ’s decision to deny her requested training in a June 2 019 email
and that she escalated her disagreement to agency upper management. ID at
11-13. The administrative judge noted that the appellant had not provided a copy
of this email in her pleadings. ID at 13. S he concluded that it appeared the email
mere ly took issue with the agency ’s denial of the appellant ’s training request and
did not appear to disclose evidence of any of the categories of wrongdoing listed
in 5 U.S.C. § 2302 (b)(8) . Id. Consequently, she found that the appellant failed to
nonfrivolously allege that she made a protected disclosure . Id.
¶7 Regarding the appellant ’s prior EEO complaints, the administrative judge
observed that it did not appear that the appellant had exhaus ted this activity with
OSC , and regardless, the Board lacks IRA jurisdiction over allegations
of retaliation for EEO activity. ID at 13 -14. Fi nally, the administrative
judge determined that even if the appellant had engaged in protected activity
within t he Board ’s IRA jurisdiction when she submitted a witness affidavit on
September 17, 2018, in connection with a coworker ’s EEO complaint, she
nevertheless failed to establish that such activity was a contributing factor in the
agency ’s decision to take any of the contested personnel actions . ID at 16 -18.
Consequently, she concluded that the appellant failed to establish jurisdiction and
dismissed the appeal.2 ID at 19.
¶8 The appellant has filed a petition for review . Petition for Review (PFR)
File, Tab 2. The agency has filed a response in opposition to the appellant ’s
petition for review, and the appellant filed a r eply. PFR File, Tabs 4 -5.
The agency also has filed a motion to strike the appellant ’s reply arguing that it
raised new allegations that wer e not raised in the petition for review pleading, and
2 Because she concluded that the appellant failed to establish jurisdiction over her
appeal, she concluded that the appellant’s motion to compel discovery was moot.
ID at 18 n.5.
5
the appellant has filed a response opposing the agency ’s motion. PFR File, Tabs
6-7.
DISCUSSION OF ARGUME NTS ON REVIEW
The administra tive judge erred by concluding that the Board lacks jurisdiction
over the appellant ’s IRA appeal.
¶9 The appellant argues on review that the agency should not have taken a
number of personnel actions against her, including the removal, and that she
established that she made several protected disclosures and engaged in prot ected
activities from 2013 through her removal in 2020. PFR File, Tab 2 at 7-12. She
also argues that she was disciplined more severely than other similarly situated
agency employees and that the agency committed harmful error in connection
with her remo val. Id. at 14 -28. Additionally, she alleges that the agency
discriminated against her in connection with her removal. Id. at 29 -31.
¶10 To establish Board jurisdiction over an IRA appeal, an appellant must
exhaust her administrative remedies with OSC and nonfrivolously allege that :
(1) she made a protected disclosure described under 5 U.S.C. § 2302 (b)(8) or
engaged in protected activity described under 5 U.S.C. § 2302 (b)(9)(A)(i), (B),
(C), or (D); and (2) the disclosure or protected activity was a contributing factor
in the agency ’s decision to take or fail to take, or threaten to take or fail to take, a
personnel action as defined under 5 U.S.C. § 2302 (a). Salerno v. Department of
the Interior , 123 M.S.P.R. 2 30, ¶ 5 (2016); see 5 U.S.C. §§ 1214 (a)(3),
1221(e)(1). A protected disclosure is a disclosure of information that an
appellant reasonably believes evidences a violation of any law, rule, or
regulation, gross mismanagement, a gross waste of funds, an abuse of authority,
or a substantial and specifi c danger to public health or safety. Linder v.
Department of Justice , 122 M.S.P.R. 14 , ¶ 12 (2014). A reasonable belief exists
if a disinterested observer with knowledge of the essential facts known to and
readily ascertainable by the appellant could reasonably conclude that the actions
of the Government evidence one of the categories of wrongdoing listed in section
6
2302(b)(8)(A). Scoggins v. Department of the Army , 123 M.S.P.R. 592 , ¶ 11
(2016).
¶11 Based on the provided OSC complaint, the administrat ive judge determined
that the appellant alleged to OSC that : (1) she was suspended for 7 days in April
2018; (2) she was suspended for 14 days in October 2019; (3) she received
lowered performance ratings in 2018 and 2019; (4) she was denied a within -grad e
increase (WIGI) in January 2020; (5) she was denied a training opportunity in
August 2020; (6) she was obstructed from competing for a GS-14 detail position;
(7) she was not selected for a GS-14 supervisory position; and (8) she was
removed from her posi tion, effective August 16, 2020. ID at 10 -11. Therefore,
she found the appellant exhausted these matters. ID at 11. She further
determined that each of the above actions were “personnel actions ” within the
meaning of 5 U.S.C. § 2302 (a)(2) . Id. We find no error with administrative
judge ’s findings in this regard. The 7 -day and 14 -day suspensions, WIGI denial,
denied training opportunity, denied detail opportunity , nonselection for the
supervisory position , and removal decision are all personnel actions for the
purposes of an IRA appeal. 5 U.S.C. § 2302 (a)(2)(A) (i), (iii), (iv), (viii), (ix); see
Ruggieri v. Merit Syste ms Protection Board , 454 F.3d 1323 , 1327 (Fed. Cir.
2006) (finding that a nonselection is a personnel action for the purposes of an
IRA appeal) ; Fisher v. Environmental Protection Agency , 108 M.S.P.R. 29 6, ¶ 6
(2008) (finding that a 4 -day suspension constituted a personnel action within the
Board ’s IRA jurisdiction) ; Hoback v. Department of the Treasury , 86 M.S.P.R.
425, ¶ 10 (2000) (agreeing with an a dministrative judge that denial of training
may be a personnel action if the training was reasonably likely to lead to an
appointment, promotion, performance evaluation, or other action described at
5 U.S.C. § 2302 (a)(2)(A)) .
¶12 Regarding the appellant ’s protected disclosures and activities, a s previously
noted, the administrative judge determined that the only potential disclosure
identified in OSC ’s close -out letter concerned the appellant ’s disagree ment with
7
her supervisor ’s decision to deny her June 2019 training request but that this
disclosure was not protected because it did not concern any of the categories of
wrongdoing identified in sec tion 2302(b)(8). ID at 11 -13. We agree . As
previously noted, t he Board ’s IRA jurisdiction covers reprisal for exercising “any
appeal, complaint, or grievance right . . . with regard to remedying a violation of
[5 U.S.C. § 2302 (b)(8)]. ” 5 U.S.C. §§ 1221 (a), 2302(b)(9)(A)(i); Mudd v.
Department of Veterans Affairs , 120 M.S.P.R. 365 , ¶ 7 (2013). However, the
Board ’s jurisdiction does not cover claims arising under section
2302(b)(9)(A)(ii), which includes claims filed for reasons other than remedying a
violation of section 2302(b)(8). 5 U.S.C. § 1221 (a); Young v. Merit Systems
Protection Board , 961 F.3d 1323 , 1329 (Fed. Cir. 2020); Mudd , 120 M.S.P.R.
365, ¶ 7.
¶13 As the administrative judge observed, although the appellant did not
provide a copy of the email, OSC ’s clos e-out letter describes the content of the
email as “expressing disagreement with the decision to deny [her] a requested
training [opportunity ],” and the appellant ’s OSC complaint reflects the same.
IAF, Tab 1 at 20, Tab 2 at 15. On review, the appellant reasserts th at her
complaints about the agency ’s failure to register her for a Foreign Service
Institute training in June 2019 constituted a protected disclosure or activity , but
she does not dispute the administrative judge ’s finding that her complaint did not
disclose any of the categories of wrongdoing identified in 5 U.S.C. § 2302 (b)(8) .
PFR File, Tab 2 at 7 -8, 27, Tab 5 at 5, 11 -12. Accordingly , we agree with the
administrative judge ’s finding that the appellant failed to nonfrivolously allege
that she made a protected disclosure or engaged in protected activity in
connection with this complaint .
¶14 Regarding the EEO complaints the appellant identified in her submission to
OSC, the administrative judg e concluded that the Board and the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit) have held that claims of
retaliation for exercising rights under Title VII do not constitute protected
8
disclosures under 5 U.S.C. § 2302 (b)(8), and so , the appellant failed to
nonfrivolously allege that she made any protected disclosures in connection with
her EEO complaints. ID at 13 -15. We agree with this finding . As previously
noted, the Board ’s jurisdiction over an IRA appeal does not cover claims arising
under section 230 2(b)(9)(A)(ii), including EEO complaints . Edwards v.
Department of Labor , 2022 MSPB 9 , ¶¶ 24-25. Accordingly, the administrative
judge correctly concluded that the appellant failed to nonfrivolously allege that
she made any protected disclosures in connection with her own EEO complaints.
¶15 Finally, the administrative judge analyzed the appellant ’s claim that a
“Witness Affidavit ” she submitted in connection with an EEO complaint filed by
a coworker constituted a protected disclosure . ID at 15 -18; IAF, Tab 9 . As an
initial matter, although the administrative judge identified the appellant ’s EEO
witness affidavit as a “protected disclosure ,” she cit ed the pertinent provision as
5 U.S.C. § 2302 (b)(9) in analyzing this claim, which addresses protected
activities . ID at 15 -18; see 5 U.S.C. § 2302 (b)(8) (identifying categories of
“disclosures ” of information protected under that section ), 5 U.S.C. § 2302 (b)(9)
(identifying types of activities protected under that section ). The administrative
judge implicitly found, and we agree, that t he appellant exhausted this activity
with OSC. ID at 11; IAF, Tab 7 at 15 -18.
¶16 The administrative judge appears to have concluded that the appellant ’s
claim qualified as an activity under section 2302(b)(9) but that she nevertheless
failed to nonfrivolou sly allege that it was a contributing factor in the agency ’s
decision to take any of the challenged personnel actions, based on either the
knowledge/timing test or other nonknowledge/timing evidence. ID at 15 -18.
¶17 However, t he administrative judge did not identify which subsection of
section 2302(b)(9) she applied in analyzing the appellant ’s claim that agency
officials retaliated against her due to her submission of a witness affidavit in
connection with a colleague ’s EEO complaint. Under 5 U.S.C. § 2302 (b)(9)(B),
protected activity includes “testifying for or otherwise lawfully assisting any
9
individual in the exercise ” of any appeal, c omplaint, or grievance right. 5 U.S.C.
§ 2302 (b)(9)(A) -(B); Alarid v. Department of the Army , 122 M.S.P.R. 600 , ¶ 10
(2015) . This provision is distinguishable from 5 U.S.C. § 2302 (b)(9)(A)(i),
which bars reprisal for an appellant ’s personal exercise of any appeal, complaint,
or grievance right granted by law, rule, or regulation concerning an all eged
violation of section 2302(b)(8). Unlike section 2302(b)(9)(A)(i), the Board ’s IRA
jurisdiction over protected activity under section 2302(b)(9)(B) need not concern
remedying a violation of whistleblower reprisal under section 2302(b)(8). Alarid ,
122 M.S.P.R. 600 , ¶ 12 n.5. The Board also has held that an appellant ’s act of
assisting another emplo yee in the EEO process constitutes protected activity
under 5 U.S.C. § 2302 (b)(9)(B) . Marable v. Department of the Army ,
52 M.S.P.R. 622 , 629 -30 (1992) (finding that the appellant ’s actions “supporting
an EEO complaint filed by an applicant for a position wi th the agency ”
constituted protected activity under section 2302(b)(9)(B)) , superseded on other
grounds by Carney v. Department of Veterans Affairs , 121 M.S.P.R. 446 (2014) ;
see Viens -Koretko v. Department of Veterans Affairs , 53 M.S.P.R. 160 , 163
(1992 ) (conclu ding that testifying in favor of another employee at an EEO hearing
constitutes activity protected under 5 U.S.C. § 2302 (b)(9)(B) ). Consequently,
we conclude that the appellant nonfrivol ously alle ged that her act of submitting
an affidavit in support of his coworker ’s EEO complaint constitute d protected
activity under 5 U.S.C. § 2302 (b)(9)(B).
¶18 Turning to the question of whether she nonfrivolously alleged that this
protected activity was a contributing factor in the agency ’s decision to take any of
the challenged personnel actions, the administrative judge determined that the
appellant failed to nonfrivolously allege a contributing factor based on the
knowledge/timing test or other nonknowledge/timing evidence. ID at 15 -18.
Specifically, the administrative judge made the following findings : (1) it was
unclear when the agency obstructed the appellant from competing for the GS -14
detail position and when she was not selected for the GS -14 Supervisor position,
10
so she could not meet the “timing ” portion of the knowl edge/timing test with
respect to those purported personnel actions ; (2) the amount of time that elapsed
between when the appellant filed the witness affidavit in September 2018 and
when the agency issued the 14 -day suspension in October 2019, denied the
appellant a WIGI in January 2020, denied her requested training in August 2020,
and removed her in August 2020 were not within the range of time from which an
inference of contributing factor could be drawn , and so the appellant failed to
meet the “timing ” portion of the knowledge/timing test; (3) although the appellant
met the “timing ” portion of the test regarding the 7 -day suspension issued in
April 2018 and the appellant ’s 2018 and 2 019 performance appraisals,
she nevertheless failed to nonfrivolously all ege that any relevant agency officials
had knowledge of the witness affidavit, and so she failed to meet the “knowledge ”
portion of the test; and (4) the other nonknowledge/timing eviden ce, including the
nature of the appellant ’s statements in the witness affidavit, did not support a
finding that the agency would have had a motive to retaliate against the appellant
based on her protected activity. ID at 16 -18. Consequently, the administrative
judge determined that the appellant failed to nonfrivolously al lege that her
protected activity was a contributing factor in the agency ’s decision to take any of
the challenged personnel actions and dismissed the appeal for lack of jurisdiction.
ID at 18.
The appellant satisfied the “timing” prong of the knowledge/ti ming tes t for
several of her personnel actions .
¶19 To satisfy the contributing factor criterion, an appellant need only raise a
nonfrivolous allegation that the fact or content of her disclosure or protected
activity was one factor that tended to affect the personnel action in any way. See
Salerno , 123 M.S.P.R. 230 , ¶ 12. One way to establish this criterion is the
knowledge/timing test, under which an appellant may nonfrivolously al lege that
the disclosure or activity was a contributing factor in a personnel action through
circumstantial evidence, such as evidence that the official taking the personnel
11
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. 5 U.S.C.
§ 1221 (e)(1); see Salerno , 123 M.S.P.R. 230 , ¶ 13. The Board has held that a
personnel action taken within approximately 1 to 2 years of an appellant ’s
disclosures sa tisfies the timing portion of the knowledge/timing test. See Skarada
v. Department of Veterans Affairs , 2022 MSPB 17 , ¶ 1 9 (observing that a
personnel action taken within approximately 1 to 2 years of the appellant ’s
disclosure satisfies the timing factor of the knowledge/timing test) ; Mastrullo v.
Department of Labor , 123 M.S.P.R. 110 , ¶ 21 (2015) (same).
¶20 Regarding the 14 -day suspension the appellant received in October 2019,
the WIGI denial in January 2020, and the denied training opportunity in
August 2020, although the administrative judge determined that these personnel
actions were not taken within the period of time to satisfy the “timing ” portion of
the knowledge/timing test, each of these personnel actions occurred less than
2 years after the appellant submitted the Septe mber 27, 2018 witness affidavit ,
and so , they would meet the “timing ” portion of the test. IAF, Tab 21 at 52-53,
121-24; Reid v. Department of Agriculture , MSPB Docket N o. DC-531D -20-
0472 -I-1, Initial Appeal File (0472 IAF), Tab 6 at 35 -36; see Skarada ,
2022 MSPB 17 , ¶ 19; Mastrullo , 123 M.S.P.R. 110 , ¶ 21. Regarding the
appellant ’s 2018 and 2019 performance appraisal s, although the administrative
judge did not identify the date that she received those appraisal s, the record
reflects that they were issued on October 30, 2018, and October 21, 2019,
respectively, well within the 2 -year period to satisfy the timing prong of the test.
IAF, Tab 21 at 134 -35; see Skarada , 2022 MSPB 17 , ¶ 19.
¶21 Regarding the appellant ’s nonselection for a GS -14 supervisory position, as
the administrative judge observed, the appellant did not specifically identify when
the agency failed to select her for this position in any of her pleadings. ID at 16.
However, in her complaint to OSC the appellant states that she filed an EEO
12
complaint in May 2016 regar ding her second -line supervisor ’s decision not to
select her for the GS -14 Supervisory Program Manager position —more than
2 years before she filed the witness statement in support of her colleague ’s EEO
complaint. IAF, Tab 7 at 12. Accordingly, the appellant ’s protected activity
could not have been a contributing factor in the agency ’s decision to take this
personnel action. See El v. Department of Commerce , 123 M.S.P.R. 76 , ¶ 10
(2015) (explaining that because the subject personnel action predated the
disclosure, the disclosure could not have contributed to the personnel action) ,
aff’d per curiam , 663 F. App’x 921 (Fed. Cir. 2016); Davis v. Department of
Defense , 106 M.S .P.R. 560 , ¶ 12 (2007) ( same ), aff’d, 278 F. App ’x 1009 (Fed.
Cir. 2008) .
¶22 The same is true of the appellant ’s 7-day suspension. Although the
administrative judge determined that the appellant could meet the “timing ”
portion of the test with respect to this personnel action, the 7 -day suspension was
issued on April 30, 2018, nearly 5 months before the appellant submitted the
witness affidavit on September 17, 2018 , and so it too predated her protected
activity . IAF, Tab 21 at 126 -30.
¶23 With respect to the GS-14 detail position for which the appellant alleges she
was obstructed from competing, although the administrative judge stated t hat the
appellant failed to identify when she was prevented from competing for th e detail,
the record includes a series of emails the Senior Director of the appellant ’s
division sent to the appellant on July 6, 2020, denying her request to apply for a
detail position with TPGA. IAF, Tab 21 at 81 -83. The appellant ’s complaint to
OSC states that she was obstructed from applying for two detail positions but
only identifies a detail with the agency ’s Plant Protection and Quarantine (PPQ)
division by name. IAF, Tab 7 at 13, 17, 20 -21. The agency FAD also identifies
the appellant ’s claim that she was denied a detail with TPGA in June 2020.
IAF, Tab 21 at 53 -55. Accordingly, we conclude that the appellant satisfied the
“timing ” prong of the knowledge/timing t est regarding her claim that the agency
13
obstructed her from competing for the GS -14 detail with TPGA in June or
July 2020 in reprisal for her September 2018 EEO witness affidavit.
¶24 Regarding the GS -14 detail with APHIS PPQ, as the administrative judge
correctly noted, a side from identifying this pos ition in her OSC complaint,
the appellant has not provided any information concerning when she was denied
the opportunity to apply for this pos ition. ID at 16. Nevertheless, the record
contains an email the appellant sent to sever al agency employees on
March 2, 2017, discussing what appears to be the APHIS PPQ detail. IAF,
Tab 17 at 5 -6. In the email, the appellant alleged that her second -level supervisor
selected her first -level supervisor for the GS -14 d etail position , on or around
April 2014, in violation of the agency ’s policies regarding advertising details
externally, and the appellant requested to be detailed to another GS -14 position.
Id. As with the GS-14 supervisory nonselection and the 7 -day su spension,
because the APHIS PPQ detail predates the appellant ’s purported protected
activity, her protected activity could not have contributed to the agency ’s actions
obstructing her from applying for the position. El, 123 M.S.P.R. 76 , ¶ 10 ; Davis ,
106 M.S.P.R. 56 0, ¶ 12 . Accordingly, we conclude that the appellant failed to
nonfrivolously allege contributing factor regarding this personnel action.
¶25 To summarize , we conclude that the appellant met the timing portion of the
knowledge/timing test with regard to the September 17, 2018 EEO affidavit she
submitted on behalf of another agency employee, in connection with the
following alleged personnel actions: (1) the 14 -day suspension she received in
October 2019 ; (2) the lowered performance rati ngs in October 2018 and
October 2019 ; (3) the WIGI denial in January 2020 ; (4) the denied training
opportunity in August 2020 ; and (5) her obstructed competition for a GS -14 detail
opportunity with TPGA in June 2020. However, the appellant ’s 7-day suspension
in April 2018, her nonselection for a GS -14 supervisory position in May 2016 ,
and the denial of her request to apply for the GS -14 detail with PPQ in
March 2017 all predated the date of her protected ac tivity, and so her activity
14
could not have contributed to the agency ’s decision to take those personnel
actions , and the appellant failed to nonfrivolously allege contributing factor with
regard to those personnel actions.
The appellant satisfied the “knowledge” prong of the knowledge/timing test
for several of her personnel actions and therefore met her jurisdictional
burden .
¶26 Regarding the “knowledge ” prong of the test, a s previously noted, t o satisfy
the contributing factor criter ion at the jurisdictional stage an appellant only need
raise a nonfrivolous allegation that the fact of, or content of, the protected
disclosure or activity was one factor that tended to affect the personnel action in
any way. Salerno , 123 M.S.P.R. 230 , ¶ 13. The Federal Circuit has found that, in
the context of an IRA appeal, a nonfrivolous allegation is an allegation of
“sufficient factual m atter, 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).
¶27 As the administrative judge noted , it is very difficult based on the
appellant ’s pleadings to discern exactly which agency officials she alleges were
aware of her purported disclosures and activities. ID at 16 -17. Nevertheless, in
her OSC complaint, the appellant does specifically identify the former Senior
Director for her division (her former second -line supervisor) and the Deputy
Administrator (her former third -line supervisor) as the subject s of the EEO
complaint for which she submitted a witness statement on behalf of “another
Plant Division employee ” and states that these two officials “took the personnel
actions ” after she filed those EEO complaints. IAF, Tab 7 at 13, 18. Referring to
the Deputy Director (her first -line sup ervisor) and the Director (her second -line
supervisor) of her division, the appellant also alleges that she “reported on them
in EEO complaints ” and “provided information and affidavits to EEO
investigators for my EEO complaints and for another Plant Divis ion employee ’s
EEO complaint about them. ” Id. at 15. Apparently referring to all of the above
15
agency officials and others , the appellant states that prior to her August 2020
removal “agency officials learned about my protected activity when I filed EEO
and other complaints on their actions and provided information and affidavits to
EEO investigators for my EEO complaints and the EEO complaints of another
Plant Division employee. ” Id. at 17.
¶28 Although not a paragon of clarity, and a lthough we have concer ns about the
amount of detail provided in these allegations, the burden at the jurisdictional
stage to make a nonfr ivolous allegation is a low one , and we must resolve any
doubt or ambiguity in the appellant ’s allegations in favor of finding jurisdiction.
See Usharauli v. Department of Health & Human Services , 116 M.S.P.R. 383 ,
¶ 19 (2011) (stating that any doubt or ambiguity as to w hether the appellant made
a nonfrivolous jurisdictional allegation should be resolved in favor of finding
jurisdiction); Jessup v. Department of Homeland Security , 107 M.S.P.R. 1 , ¶ 10
(2007) (observing that the appellant ’s burden of making a nonfrivolous allegation
is low and requires onl y a minimal ly sufficient showing). Accordingly, we
conclude that the appellant nonfrivolously alleged that relevant agency officials,
including the Deputy Director (her first -line supervisor), the Director (her
second -line supervisor), the Senior Director (her former second -line supervisor),
the Deputy Administrator (her former third -line supervisor), and the former
Director (her former first -line supervisor) were all aware of her protected activity
under 5 U.S.C. § 2302 (b)(9)(B) of filing a wit ness statement in support of a
colleague ’s EEO complaint. IAF, Tab 7 at 19 (identifying all of the above
officials as the subjects of her protected activity of filing the EEO witness
affidavit and as the officials responsible for taking retaliatory person nel actions).
¶29 Regarding the agency officials responsible for each of the challenged
personnel actions, t he 14 -day suspension was issued by the Director . IAF, Tab 21
at 121 -23. The Deputy Director and the Director were the rating official and the
reviewi ng official, respectively, for the appellant ’s 2018 and 2019 performance
appraisals. IAF, Tab 21 at 134 -35, Tab 7 at 17. The former Director denied the
16
appellant ’s WIGI in January 2020, and the Senior Director denied her request for
reconsideration on th at decision. IAF, Tab 7 at 16 -17; 0472 IAF, Tab 6 at 35 -36.
Regarding the denied training opportunity in August 2020, t he appellant alleged
that the former Director denied the training opportunity when she refused to allow
her to register for the trainin g course. IAF, Tab 7 at 16 -17. Finally, regarding
the GS -14 detail with TPGA , the appellant alleged that the Senior Director was
the individual who denied her the opportunity to apply for the detail, and the
record includes copies of emails from the Senior Director denying the appellant ’s
request to apply for the detail . IAF, Tab 7 at 16 -17, Tab 21 at 81 -83.
¶30 In sum, b ased on our review of the written record , we conclude that the
appellant met her burden of making a nonfrivolous allegation that she wa s
suspended for 14 days in October 2019, received lowered performance ratings in
October 2018 and October 2019, was denied a WIGI in January 2020, was denied
a training opportunity in August 2020, and was obstructed from competing for a
GS-14 detail opport unity with TPGA in June 2020 in retaliation for her protected
activity under section 2302(b)(9)(B) of “testifying for or otherwise lawfully
assisting any individual in the exercise ” of any appeal, c omplaint, or grievance
right in connection with her submis sion of a witness statement in support of her
colleague ’s EEO complaint. Accordingly, w e vacate the initial decision and
remand these claims for additional development of the record and for issuance of
a decision on the merits as an IRA appeal .
The appe al of the agency FAD finding no discrimination in connection with the
appellant ’s removal must be remanded for adjudication on the merits as a timely
filed Board appeal of her mixed -case complaint under 5 U.S.C. § 7702 .
¶31 Notably absent from our analysis has been any discussion of the removal
action. In her initial appeal filing, the appellant claimed that her removal was the
result of both EEO discr imination and whistleblower reprisal. IAF, Tab 1 at 3 -5.
By dismissing this appeal for lack of IRA jurisdiction, we find that the
administrative judge erred in considering only the appellant ’s IRA appeal rights.
17
She also should have consider ed the appel lant’s mixed -case appeal rights. Under
these circumstances, we must remand the appeal for adjudication on the merits
regarding the appellant ’s Board appeal of her mixed -case complaint challenging
her removal .
¶32 When an employee alleges that she was subject ed to an otherwise
appealable adverse action that can be the subject of a negotiated grievance
procedure, and claims that action was based on EEO discrimination or reprisal ,
the employee may choose among the following : (1) the negotiated grievance
procedure; (2) a Board appeal; or (3) a formal EEO complaint. 5 U.S.C.
§ 7121 (d); Galloway v. Social Security Administration , 111 M.S.P.R. 78 , ¶ 14
(2009). Whichever is filed first is deemed a binding election to proceed in that
forum. Carey v. Department of the Interior , 103 M.S.P.R. 534 , ¶ 11 (2006). If
the employee elects to file a formal EEO complaint, she may file a Board appeal,
as applicable here , within 30 days after receiving the agency ’s FAD . 5 U.S.C.
§ 7702 (a)(2); see 5 C.F.R. §§ 1201.151 (a)(1), 1201.154(b)(1 ). Such an appeal is
known as a mixed case, and the Board will adjudicate both the underlying
appealable action and the discrimination claims.3 Wilson v. Department of
Veterans Affairs , 2022 MSPB 7 , ¶¶ 12, 14.
3 Under 5 U.S.C. § 7121 (g), an appellant who claims to have suffered reprisal for
disclosures or activities protected under 5 U.S.C. § 2302 (b)(8) or (b)(9)(A)(i), (B), (C),
or (D), may, among other options, elect to file an OSC complaint potentially followed
by an IRA appeal. 5 U.S.C. §§ 1214 (a)(3), 1221(a), 7121(g)(2) -(3); 5 C.F.R.
§ 1209.2 (d); Savage v. Department of the Army , 122 M.S.P.R. 612 , ¶ 17 (2015),
overruled in part by Pridgen v. Office of Management & Budget , 2022 MSPB 31 ,
¶¶ 23-24;. An employee is deemed to have elected whichever remedy she files first and
that election precludes pursuing the matter in the other fora. Sherman v. Department of
Homeland Security , 122 M.S.P.R. 644 , ¶ 12 (2015). Section 7121(g) “applies with
respect to a prohibited personnel practice other than ” a claim of EEO discrimination or
reprisal. 5 U.S.C. §§ 2302 (b)(1), 7121(d), (g)(1). Assuming, without deciding, that an
appellant’s filing of an OSC complaint before filing an EEO complaint divests the
Board of chapter 75 jurisdiction over a mixed -case appeal , it would not impact the
outcome here. The app ellant filed her EEO complaint first. IAF, Tab 1 at 4, Tab 7 at
29, Tab 19 at 4.
18
¶33 Here, the agency issued the removal decision on December 7, 2020, and it
included notice of the appellant ’s right to challenge her removal through the EEO
process. IAF, Tab 1 at 16 -18. The record reflects that the appellant filed a
formal EEO complaint challenging her removal on December 7, 2020 , and the
agency accepted her formal complaint on January 22, 2021.4 IAF, Tab 19 at 4 -6.
The agency issued its FAD denying her EEO complaint on May 19, 2021 , and the
appellant timely filed the instant appeal less than 30 days later . IAF, Tab 1,
Tab 21 at 47 -72. In the narrative section of her appeal, she alleged that she had
been subjected to discrimination, harassment, and reprisal by a number of agency
officials and noted that she had filed “multiple complaints ” regarding her
allegations. Id. at 5. Accordingl y, her appeal challenging the agency FAD was a
timely filed Board appeal of her mixed -case complaint.
¶34 The administrative judge advised the appellant regarding how to establish
jurisdiction over an IRA appeal but not how to establish jurisdiction over a
chapter 75 appeal , nor did she provide the appellant with an opportunity to clarify
the nature of her Board appeal after the FAD on her removal was submitted to the
record . IAF, Tab 4 , Tab 21 at 47 -72. An appellant must receive explicit
information on wh at is required to establish an appealable jurisdictional issue .
Burgess v. Merit Systems Protection Board , 758 F.2d 641 , 643 -44 (Fed. Cir.
1985) . At the time of her removal, she was a nonpreference eligible, permanent
competitive service employee with over 1 year of service. IAF, Tab 21 at 73, 76.
Therefore, the Board has jurisdiction over her mixed -case appeal. 5 U.S.C.
§§ 7511 (a)(1)(A), 7512(1), 7702(a)(1). Accordingly, we must remand the portion
of this appeal challenging the removal action for adjudication on the merits .
Although the appellant did not request a hearing, in light of the clarification of
the nature of the Board’s jurisdiction over h er claims in this Remand O rder, the
4 Although she was covered by a collective bargaining agreement, the appellant did not
file a grievance of her removal. IAF, Tab 1 at 4, 11 -12, Tab 20 at 18, Tab 21 at 285 -86,
318-19.
19
administrative judge should afford the appellant the opportunity to request a
hearing on remand. IAF, Tab 1 at 2. The administrative judge also should
provide the appellant with the opportunity to raise potential affirmative defenses
in connection with her Board appeal under chapter 75 , including any claims of
discrimination on the basis of protected EEO activity or reprisal for protected
whistleblowing activity.5
5 Because we are remanding this appeal for adjudication on the merits regarding the
appellant’s claims, the parties will have the opportunity to supplement the record and to
engage in discovery. On remand, the administrative judge should issue a ruling on the
appellant’s motion to compel discovery. PFR File, Tab 2 at 5 -7, 12 -14, IAF, Tab 23; ID
at 18 n.5.
Additionally, the agency has filed a motion to strike the appellant’s reply to its response
to the petition for review because it contained new allegations regarding additional
purported protected disclosures the appellant alleges she made to agency management
in 2013, to the Inspector General in 2017, to a U.S. Senator in 2017, and to OSC in
2018. PFR File, Tab 5 at 4 26, Tab 6. As the age ncy correctly notes, under the Board’s
regulations, a reply must be “limited to the factual and legal issues raised by another
party in the response to the petition for review.” 5 C.F.R . § 1201.114 (a)(4).
Accordingly, we have not considered the appellant’s arguments in her reply to the
extent they fail to respond to the agency’s arguments. See Boston v. Department of the
Army , 122 M.S.P.R. 577 , ¶ 5 n.3 (2015) (declining to consider new arguments that were
first raised in a reply brief); Special Counsel v. Kehoe , 46 M.S.P.R. 112 , 117 -18 (1990)
(observing the well -established Federal appellate rule that a party cannot raise new
issues in a reply). Nevertheless, because we are remand ing the appeal for adjudication
of the appellant’s removal under chapter 75, she will be provided with the opportunity
on remand to raise any new potential affirmative defenses.
20
ORDER
¶35 For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | REID_KATRINA_DC_1221_21_0478_W_1_REMAND_ORDER_1967357.pdf | 2022-10-07 | null | DC-1221 | NP |
4,046 | https://www.mspb.gov/decisions/nonprecedential/HOBSON_FAYE_R_CH_1221_17_0203_W_1_FINAL_ORDER_1966866.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
FAYE R. HOBSON,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
CH-1221 -17-0203 -W-1
DATE: October 6, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Faye R. Hobson , Fort Campbell, Kentucky , pro se.
Melissa Martinez , Peachtree City, Georgia, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal without prejudice, subject to
automatic refiling at a later date . Generally, we grant petitions such as this one
only in the following ci rcumstances: the initial decision contains erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judg e’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argu ment is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and FORWARD the matter
to the Central R egional Office for adjudication as a timely refiled appeal .
5 C.F.R. § 1201.113 (b).
¶2 For purposes of this decision, we note that the appellant previously filed her
first IRA a ppeal, Hobson I , alleging that eight nonselections between 2012
and 2014 were the result of her protected whistleblowing activity. Hobson v.
Department of Defense (Hobson I) , MSPB Docket No. CH -1221 -15-0470 -W-1,
Initial Appeal File (0470 IAF), Tab 115, In itial Decision (0470 ID); Hobson v.
Department of Defense , MSPB Docket No. CH -1221 -15-0470 -W-1, Final Order
(Oct. 4, 2022 ). In that case, the administrative judge found that the appellant met
her burden of proving exhaustion through Office of Special Coun sel (OSC) File
No. MA-15-0932. 0470 ID at 6 -7; see 0470 IAF, Tab 1 at 8. She also found that
the appellant proved that she engaged in protected activity when, in 2005, she
made a disclosure concerning the agency’s alleged noncompliance with state and
Federal special education requirements at Barkley Elem entary School. 0470 ID
at 7-8. However, the administrative judge found that the appellant failed to prove
that this protected disclosure was a contributing factor in her nonselections .
0470 ID at 8-24. Therefore, she denied the appellant’s request for corrective
action . 0470 ID at 24. The appellant filed a petition for review. Hobson v.
3
Department of Defense , MSPB Docket No. CH -1221 -15-0470 -W-1, Petition for
Review File, Tab 1.
¶3 While Hobson I was pending , the appellant filed another complaint with
OSC, File No. MA -16-4697. Hobson v. Department of Defense (Hobson II) ,
MSPB Docket No. CH -1221 -17-0203 -W-1, Initial Appeal File (0203 IAF), Tab 1
at 2, 10 -13. The instant IRA appeal, Hobson II , fol lowed OSC’s closure of that
complaint. Id. The administrative judge instructed the appellant to identify the
precise issues involved in Hobson II , separate from those addressed in Hobson I ,
and meet her jurisdictional burden. 0203 IAF, Tabs 3 -4. After the appellant
responded, 0203 IAF, Tabs 7 -11, the administrative judge dismissed Hobson II
without prejudice, 0203 IAF, Tab 12, Initial Decision (0203 ID) at 7 -8. She
explained that there was at least some overlap between Hobson I and Hobson II ,
the forme r was pending review before the Board, and that review could affect the
latter. Id. The administrative judge’s decision further explained that Hobson II
would be automatically refiled within 10 days of the Board’s decision in
Hobson I, or on September 28 , 2017, whichever was earlier. 0203 ID at 8.
¶4 Rather than wait for the automatic refiling of Hobson II , the appellant filed
a petition for review. Hobson v. Department of Defense , MSPB Docket
No. CH-1221 -17-0203 -W-1, Petition for Review (0203 PFR) File, T ab 1. The
agency has filed a response , and the appellant has replied. 0203 PFR File, Tabs
3, 5.
¶5 An administrative judge has wide discretion to control the proceedings
before her, and a dismissal without prejudice to refiling is a procedural option
commit ted to her sound discretion. Gingery v. Department of the Treasury ,
111 M.S.P.R. 134 , ¶ 9 (2009). The Board has held that an ad ministrative judge
may sua sponte dismiss an appeal without prejudice when such a dismissal is in
the interests of fairness, due process, and administrative efficiency. Gidwani v.
Department of Veterans Affairs , 74 M.S.P.R. 509 , 511 (1997).
4
¶6 The appellant’s arguments on review do not demonstrate that the
administrative judge abused her discretion in dismissing this case without
prejud ice for automatic refiling at a later date. 0203 PFR File, Tab 1 at 6 -13. In
fact, it appears that the appellant’s arguments merely reflect a misunderstan ding
of that dismissal; she essentially has argued the merits of her appeal, rather than
the proprie ty of the administrative judge’s decision to delay that appeal. Id.; see
generally Brown v. Department of the Navy , 102 M.S.P.R. 377, ¶ 14 (2006)
(recognizing that a dismissal without prejudice is not a decision on the merits);
Peltier v. Department of Justice , 79 M.S.P.R. 674 , 677 (1998) (same).
¶7 Even if the administrative judge had erred in dismissing Hobson II without
prejudice for automatic refiling, the matter is now moot. The administrative
judge determined that Hobson II would be automatically refile d after either
September 28, 2017, or the Board’s decision in Hobson I . 0203 ID at 8. Both of
those intervening events have occurred, so Hobson II is ripe for adjudication,
regardless of our decision on the propriety of the dismissal without prejudice.
See Henry v. Department of Veterans Affairs , 110 M.S.P.R. 213 , ¶ 6 (2008)
(concluding that the Board need not determine whether the administrative judge
abused her discretion in dismissing an appeal without prejudice pending an
intervening event because that event had since occurred and the appeal was ripe
for adjudication). Accordingly, we deny the appellant’s petition concerning the
dismissal of Hobson II without prejudice and forward the appeal to the Central
Regional Office for docketing and adjudication as a refiled appeal.2
2 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
5
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of ho w courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Fail ure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have qu estions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decisi on in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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 partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative re ceives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
7
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U. S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your rep resentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EE OC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
8
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2 302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your pe tition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Cir cuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants b efore the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain 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 websit es, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HOBSON_FAYE_R_CH_1221_17_0203_W_1_FINAL_ORDER_1966866.pdf | 2022-10-06 | null | CH-1221 | NP |
4,047 | https://www.mspb.gov/decisions/nonprecedential/ARUFE_JORGE_A_SF_0752_16_0217_I_1_FINAL_ORDER_1966876.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JORGE A. ARUFE,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency.
DOCKET NUMBER
SF-0752 -16-0217 -I-1
DATE: October 6, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jorge A. Arufe , Boulder City, Nevada , pro se.
Karen D. Glasgow , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
Member Limon recused himself and
did not participate in the adjudication of this appea l.
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal . Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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 c ontributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings 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 conclu de 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 express ly MODIFIED by
this Final Order to supplement the administrative judge’s analys is concerning the
agency’s absent without leave (AWOL) charge and to find that the appellant is
deemed to have abandoned his affirmative defenses , we AFFIRM the initial
decision.
BACKGROUND
¶2 Effective December 7, 2015, the agency removed the appellant fro m his
Hydrologist position based on two charges of failure to follow instructions and
AWO L. Initial Appeal File (IAF), Tab 1 at 20 -34. The failure to follow
instructions charge was supported by three specifications2 alleging that : (1) on
March 11, 2015, the appellant entered an incorrect shift rating for the Hot Creek
gaging station ; (2) on May 28, 2015, the appellant failed to get a surface water
rating approved for Hot Creek prior to publishing it online ; and (3) on June 28,
2015, the appellant entered another unapproved rating for Hot Creek that
displayed online . Id. at 8-9, 21 -25. The agency alleged under the AWOL charge
2 Although the agency did not enumerate the specifications underlying its narrative
charge, according to the administra tive judge, the parties agreed that they understood
each specification to be distinct. IAF, Tab 11 at 8.
3
that the appellant was absent from July 21 to September 9, 2015 , and had not
provided appropriate documentation to support his abs ence and request for leave.
Id. at 9-14, 25 -26.
¶3 The appellant filed a Board appeal disputing the charges. Id. at 5. He did
not request a hearing. Id. at 2. On August 3, 2016, the administrative judge
issued an initial decision, sustaining the appell ant’s removal. IAF, Tab 11, Initial
Decision (ID). The administrative judge sustained the failure to follow
instructions charge based on specifications 2 and 3. ID at 6 -12. He also
sustained the AWOL charge, finding that it was undisputed that the appe llant was
absent during the relevant time period and that the agency proved that, with the
exception of 2 days, the appellant’s absences were unauthorized. ID at 13 -14.
Lastly, the administrative judge found that there was a nexus between the
sustained c harges and the efficiency of the service and that removal was within
the tolerable limits of reasonableness.3 ID at 14 -17.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has opposed the appellant’s petit ion. PFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge correctly found that the agency proved its failure to
follow instruction s charge .
¶5 The administrative judge found that the evidence established t hat the
appellant’s supervisor instructed the appellant to gain approval for all new
surface water ratings prior to “working the record ”4 and that such an instruction
was proper given her stat us as his supervisor. ID at 7 . He further found that,
3 The appellant does not challenge these findings on review, and we discern no error in
the administrative judge’s analysis.
4 The administrative judg e found that “working the record ” referred to taking any
record -related action from putting data online and applying shifts after a field trip to a
formal work up of a record. ID at 6. Although the appellant contends that this was an
erroneous finding, h e fails to adequately explain how or why this definition is
inaccurate. PFR File, Tab 1 at 20.
4
regarding specifications 2 and 3, the appellant posted online unapproved ratings
for Hot Creek . ID at 10 -12. On review, the appellant contends that his
supervisor was not qualified to appr ove his ratings because she previously
approved ratings that were not based on U.S. Geological Survey (USGS) policy ,
showed no respect for the peer review process utilized to ensure computationally
correct ratings, and previously left an unapproved or incorrect rating online . PFR
File, Tab 1 at 20-21. Regarding specification 2, the appellant argues that
discipline is not warranted because the ratings his supervisor approved and p osted
online were not based on USGS policy , whereas his rating was based on USGS
policy and also was later approved after he presented it at a ratings workshop. Id.
at 21-22. Rega rding specification 3, the appellant similarly argues that his
supervisor was not fit to decide whether his ratings should be approved due to her
“lack of scientific acumen” and “lack of understanding of the science of Hot
Creek. ” Id. at 22 -23. Although the appellant clearly disagrees over the technical
aspects of the rating for Hot Creek, his arguments fail to show any error in the
adminis trative judge’s finding that he failed to follow properly given instructions
and thus do not provide a basis for reve rsal. 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 ju dge’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).
The administrative judge correctly found that the agency proved its AWOL
charge.
¶6 In sustaining this charge, the administrative judge found that, with the
exception of July 27 and 28, 2015, the agency proved that the appellant was
absent and his absences were unauthorized . ID at 13 -14. On review, the
appellant does not dispute that he was absent during the relevant time period but
argues that he should have been granted leave bas ed on a n August 17, 2015 letter
from his psychologist , which referenced treatment for “health problems related to
5
his work situation” that had caused him “a great deal of health problems and
emotional distress that authenticate [d] his need for time off.” PFR File, Tab 1
at 26; IAF, Tab 5 at 143. An AWOL charge will not be sustained if an appellant
presents administratively acceptable evidence showing that he was incapacitated
for duty during the relevant time period if he has sufficient sick leave to cove r the
period of absence . Thom v. Department of the Army , 114 M.S.P.R. 169 , ¶ 5
(2010); Valenzuela v. Department of the Army , 107 M.S.P.R. 549 , ¶ 9 (2007).
Here, the agency notified the appellant that his medical documentation was
insufficient because it faile d to contain a diagnosis, prognosis, or medical
explanation as to how his condition prevented him from performing his job
duties. IAF, Tab 5 at 139.
¶7 We find that the agency properly considered the appellant AWOL because
his medical documentation does no t constitute persuasive evidence of
incapacitation due to the lack of detail as to his medical condition, diagnosis, and
prognosis. Compare Lawley v. Department of the Treasury , 84 M.S.P.R. 253 ,
¶¶ 22-23 (1999) (finding that the appellant’s medical documentation , which stated
that she required time off because of emotional stress that was work related and
due to problems with her supervisor, failed to indicate that she was incapacitated
for duty ), with Patterson v. Department of the Air Force , 74 M.S.P.R . 648 ,
652-58 (1997) (finding the appellant’s detailed medical evidence , which indicated
the reasons why she was completely unable to work due to problems with her
supervisors, a diagnosis, and a prognosis of when she could return to work,
established tha t she was incapacitated for duty).
¶8 The appellant also argues that the agency should have granted him leave
without pay (LWOP) instead of carrying him in AWOL status. PFR File, Tab 1
at 26. We disagree . It is well settled that authorizati on of LWOP is wi thin the
agency’ s discretion. Oates v. Department of Labor , 105 M.S.P.R. 10 , ¶ 11
(2007). However, the Board has held that, in case s involving medical excuses, it
will examine the record as a whole to determine whether the agency’s denial of
6
LWOP was reasonable under the circumstances. Sambrano v. Department of
Defense , 116 M.S.P.R. 449 , ¶ 4 (2011) . Here, t he record reflects that after
initially requesting sick leave for his absence, the appellant requested LWOP,
indicating that he did not believe it was f air for him to have to use sick leave
when his “sickness” was caused by his work stress. IAF, Tab 5 at 188 . We find
that it was not unreasonable for the agency to refuse to grant the appellant LWOP
in lieu of sick leave when he failed to provide sufficie nt medical documentation
to support the same absences.
The administrative judge did not abuse his discretion in declining to address the
appellant’s untimely affirmative defenses.
¶9 On review, the appellant argues that the administrative judge erroneously
determined that he was not raising any affirmative defenses and failed to address
his claims of harmful procedural erro r and retaliation for his prior equal
employment opportunity activity, for filing a grievance, and for his protected
whistleblower activity . PFR File, Tab 1 at 1-2, 5-7. However, the appellant did
not indicate on his appeal form that he was raising any affirmative defenses. IAF,
Tab 1 at 5. Further, the record reflects that, during a close of record conference
call on February 18, 2016, t he appellant confirmed that he was not raising any
affirmative defenses and/or was withdrawing any affirmative defenses not
specifically identified in the summary. IAF, Tab 7 at 2 -4. Notwithstanding, the
administrative judge provided written notice in th e order regarding the applicable
burdens of proof for a wide range of potential affirmative defenses, including
claims of discrimination, retaliation, harmful procedural error, and whistleblower
reprisal, among others, but noted that such affirmative defen ses would not be
addressed by the Board absent a specific timely motion followed by an order. Id.
at 4 -24. The close of record order further specified that any objections or
exceptions to the summary were to be received within 7 calendar days of the date
of the order or would be deemed waived. Id. at 24. The appellant did not file a
motion or objection within the 7 -day deadline.
7
¶10 On March 21, 2016, the appellant filed a 328-page close of record
submission,5 which included a section titled “Response to the Order and Summary
of Close of Record Conference,” in which he purports to raise claims of harmful
procedural error, retaliation for prior protected activity, retaliation for filing a
grievance, and whistleblower reprisal. IAF, Tab 10 at 70-77. The ad ministrative
judge did not address any affirmative defenses in the initial decision, noting that
the appellant did not timely object to the close of record summary . ID at 4.
¶11 Under these circumstances we find that the administrative judge did not
abuse his discretion in declining to address the appellant’s untimely affirmative
defenses. As noted , the appellant did not object to the close of record order
stating that he was not raising any affirmative defenses. Cf. Thurman v. U.S.
Postal Service , 2022 MSPB 21, ¶¶ 17 -18 (considering the appellant’s failure to
object to a summary of the issues to be decided that failed to include potential
affirmative defenses , among other factors, in assessing w hether an appellant is
deemed to have waived or abandoned a previously raised affirmative defense) ;
Crowe v. Small Business Administration , 53 M.S.P.R. 631 , 635 (1992) ( finding
that the appellant abandoned his affirmative defenses when he failed to object,
when given the opportunity, to the administrative judge’s rulings excluding tho se
issues from the appeal ). The appellant does not explain why he failed to timely
object to the order below. However, he asserts that he was confused and did not
understand the meaning of the term “affirmative defense ” at the time of the clos e
of record conference and that, following the issuance of the initial decision, he
5 The administrative judge considered the appella nt’s close of record submission despite
finding that it was received by the Board on March 23, 2016, after th e March 21, 2016
deadline set forth in the close of record order. ID at 4 -5. However, the language in the
close of record order is unclear as it both stated that submissions were to be filed by
March 21, 2016, but also that submissions received after tha t date would not be
accepted. IAF, Tab 3 at 1. Pursuant to the Board’s regulations, the appellant’s
submission, mailed on March 21, 2016, and received by the Board on March 23, 2016,
was timely filed. See 5 C.F.R. § 1201.4 (l) (stating that the date of filing by mail is
determined by the postmark date). Under these circumstances, the administrative judge
properly considered the appellant’s close of record submission.
8
consulted with an attorney who explained the term to him. PFR File, Tab 1 at 2.
We find such arguments unavailing. Having been informed of his right to obtain
representation, IAF, Tab 2 at 2, 10, and choosing to proceed pro se, the appellant
is responsible for the consequences of that decision, see, e.g. , Brum v.
Department of Veterans Affairs , 109 M.S.P.R. 129 , ¶ 5 (2008). Moreover, such
confusion was not due to any misleading or incorrect information provided by the
Board. T he administrative judge’s order specifically notified the appellant of
potential affir mative defenses and their applicable burdens of proof , and the
appellant could have sought additional clarification of the order to the extent
necessary.
¶12 Accordingly, we affirm the initial decision sustaining the appellant’s
removal.
NOTICE OF APPEAL RIG HTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decisio n. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights descr ibed below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow a ll filing time limits and requirements. Failure to file
6 Since the issuanc e of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one appli es to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Fed eral Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pr o Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may v isit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 an d that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you h ave a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.u scourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If y ou have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to t he 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 metho d requiring a signature, it must be 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 A ct of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 sectio n
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent juri sdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
7 The original statutory prov ision that provided for judicial review of certain
whistleblower claims by any court of 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 appell ants to file petitions for judicial review of
MSPB decisions in certain 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 retr oactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
If you submit a petition for judicial re view to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, a nd Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono represent ation
for Merit Systems Protection Board appellants before the 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 court s of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BO ARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ARUFE_JORGE_A_SF_0752_16_0217_I_1_FINAL_ORDER_1966876.pdf | 2022-10-06 | null | SF-0752 | NP |
4,048 | https://www.mspb.gov/decisions/nonprecedential/CARTER_JOHN_NY_0752_16_0120_I_1_FINAL_ORDER_1966882.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHN CARTER,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.
DOCKET NUMBER
NY-0752 -16-0120 -I-1
DATE: October 6, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
John Carter , Hillside, New Jersey, pro se.
Jeremy A. Linden , New York, New York, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has f iled a petition for revie w of the initial decision, which
dismissed his involuntary retirement appeal for lack of jurisdiction . Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous fi ndings of material fact; the initial decision is
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or th e initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due dil igence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this
appeal , we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113 (b).2
¶2 The appellant retired from his position as a Social Insurance Specialist.
Initial Appeal File (IAF), Tab 10 at 87. He filed the instant appeal asserting that
his retirement was involuntary and requested a hearing. IAF, Tab 1. The
administrative judge issued an initial decision that dismissed the appeal for lack
of jurisdiction without holding the requested hearing , finding that the appellant
failed to nonfrivolously allege that his retirement was coerced. IAF, Tab 11,
Initial Decision (ID) . The appellant has filed a petition for re view , and the
2 The appellant also filed a motion seeking leave to remove from the record a statement
he provided to an equal employment opportunity (EEO) investigator because it is “a
false statement that misrepr esented the statement the [appellant] actually gave to the
EEO investigator . . . .” Petition for Review File, Tab 6 at 1. The appellant’s request to
have this evidence removed from the record is denied because his statement to the EEO
investigator, whil e perhaps pertinent to claims he may be raising in his EEO
discrimination complaint, would have no bearing on the Board’s determination of the
dispositive issue in this case —whether the appellant raised a nonfrivolous allegation
that his retirement was inv oluntary and therefore within the Board’s jurisdiction.
3
agency has responded in opposition to the petition. Petition for Review (PFR)
File, Tabs 1, 3.3
DISCUSSION OF ARGUME NTS ON REVIEW
¶3 An employee ’s retirement is presumed to be a voluntary action and, as such,
is not within the Board ’s jurisdict ion. Salazar v. Department of the Army ,
115 M.S.P.R. 296, ¶ 9 (2010) . However, an involuntary retirement or resignation
is tantamount to a removal and, accordingly, is appealable to the Board.
Garcia v. Department of Homeland Security , 437 F.3d 1322 , 1328 (Fed. Cir.
2006) (en banc) . If an appellant makes a nonfrivolous allegation of fact
establishing Board jurisdiction, he is entitled to a hearing at which he must prove
jurisdiction by preponderant evidence. Id. at 1344 ; Thomas v. Department of the
Navy , 123 M.S.P.R. 628, ¶ 11 (2016).
¶4 Here, the appellant asserted that , after he had to exhaust all of his leave
when recovering from an i llness, his office manager denied him 30 days of
advanced sick leave for no legitimate reason. IAF, Tab 1. He argued that he
“had to retire in order to receive pay .” Id. The administrative judge agreed with
the agency that the appellant’s claims did not amount to a nonfrivolous allegation
that his working conditions became so intolerable that a reasonable person in his
position would have felt compelled to retire. ID at 6. Specifically, she found that
the agency’s decision to deny the appellant’ s request for advanced sick leave,
while allowing him to remain on unpaid leave until he was able to return to work,
3 On review, the appellant submits a 2012 letter from the agency’s EEO specialist
memorializing a telephone conversation regarding his EEO complaint. PFR File, Tab 1
at 5. The Board will not conside r evidence submitted for the first time with the petition
for review absent a showing that it was unavailable before the record was closed despite
the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980);
5 C.F.R. § 1201.115 (d). The appellant has not indicated why this evidence was
previously unavai lable, and thus we do not consider it.
4
did not constitute working conditions so difficult or unpleasant that a reasonable
person in his position would have felt compelled to reti re.4 ID at 7.
¶5 To establish involuntariness on the basis of coercion , an employee must
show the following : (1) the agency effectively imposed the terms of the
employee ’s resignation or retirement; (2) the employee had no realistic
alternative but to res ign or retire; and (3) the employee ’s resignation or retirement
was the result of improper acts by the agency. Garcia , 437 F.3d at 1329. The
appellant’s dissatisfaction with an agency decision that it was authorized to take ,
such as the denial of leave, does not constitute coerced involuntariness. See
Staats v. U.S. Postal Service , 99 F.3d 1120 , 1124 (Fed. Cir. 1996) . Additionally,
the appellant’s desire to avoid financial hardship would not establish that his
choice to retire was involuntary. Baker v. U.S. Postal Service , 84 M.S.P.R. 119,
129-30 (19 99). Accordingly, we agree with the administrative judge that the
appellant failed to nonfrivolously allege that his retirement was involuntary. See
Searcy v. Department of Commerce , 114 M.S.P.R. 281 , ¶ 13 (2010) (finding that
the appellant failed to nonfrivolously allege that his resignation was involuntary
when he claimed that his supervisor denied his request for advanced leave, spoke
to him disrespectfully , and did not assist with his work and that another official
refused to grant him an education waiver that would have allowed him to apply
for certain vacancies ).
¶6 On review, the appellant g enerally asserts that the agency discriminated
against him based upon his disability, age , and protected status and that the
agency retaliated against him for his prior equal employment opportunity (EEO)
activity. PFR File, Tab 1 at 7 -8. The Board addres ses allegations of
discrimination and re taliation in connection with an alleged involuntary
4 To the extent that the initial decision referred to the preponderant evidence standard as
opposed to the nonfrivolous allegation standard, ID at 6 -8, we clarify that the Board
applies the nonfrivolous allegation standard to determine whether the appellant is
entitled to a hearing on the jurisdictional issu e, Putnam v. Department of Homeland
Security , 121 M.S.P.R. 532 , ¶ 21 (2014).
5
retirement only insofar as those allegations relate to the issue of voluntariness.
Brown v. U.S. Postal Service , 115 M.S.P.R. 609, ¶ 10, aff’d , 469 F. App’x 852
(Fed. Cir. 2011) . We find that the appellant’s conclusory allegations do no t
provid e a reason for disturbing the administrative judge’s finding that he failed to
nonfrivolously allege that his retirement was involuntary.5 See id., ¶ 15 (finding
that the appellant failed to nonfrivolously allege that the agency coerced her
retirement whe n, prior to her retirement, she was pursuing her discrimination
claims through the EEO process and the record did not indicate that the claims
were not being properly considered) .
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 b elow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies t o your particular case. If you have questions
5 In light of our finding that the Board lacks jurisd iction over this appeal, we need not
address whether the appeal was timely filed. Alston v. Social Security Administration ,
95 M.S.P .R. 252 , ¶ 19 (2003), aff’d , 120 F. App’x 825 (Fed. Cir. 2005).
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 a dvise 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
judic ial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any a ttorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and tha t such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
7
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrim ination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed thr ough the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receiv e
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Wash ington, D.C. 20013
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 5S W12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no cha llenge to the Board’s
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:
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 Revi ew 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 circ uit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appea ls for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provid ed by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CARTER_JOHN_NY_0752_16_0120_I_1_FINAL_ORDER_1966882.pdf | 2022-10-06 | null | NY-0752 | NP |
4,049 | https://www.mspb.gov/decisions/nonprecedential/KAPLAN_KATHLEEN_MARY_DC_0432_17_0195_I_1_REMAND_ORDER_1967043.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KATHLEEN MARY KAPLAN ,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
DC-0432 -17-0195 -I-1
DATE: October 6, 2022
THIS ORDER IS NONPRECEDENTIAL1
Kathleen Mary Kaplan , Arlington, Virginia, pro se.
Caroline Raines Greenfield and Jeremiah Crowley , Joint Base Andrews,
Maryland, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed her removal for inadequate contribution . For the reasons set forth
below, we GRANT the petition for review, VACATE the initial decision, and
REMAND the appeal to the Washington Regional Office for further adjudication
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
consistent with Santos v. National Aeronautics & Space Administration , 990 F.3d
1355 (Fed. Cir. 2021).
BACKGROUND
¶2 The appellant was a DR -IV Principal Computer Scientist for the Air Force
Office of Scientific Research (AFOSR). Initial Appeal File (IAF), Tab 7 at 52.
Her principal duties involved managing the agency’s basic research program in
software and systems, evaluating scientific opportunities, evaluating and selecting
research proposals, and advocating research programs to management,
stakeholders, and agency review panels. IAF, Tab 17 at 29. This was a pay band
position under an Office of Personne l Management demonstration project,
utilizing a contribution -based compensation system. IAF, Tab 18 at 5 -16,
Tabs 19-22, Tab 23 at 8; see generally National Defense Authorization Act for
Fiscal Year 1995, Pub. L. No. 103 -337, § 342(b), 108 Stat. 2663 (199 4); 5 U.S.C.
§ 4703 ; 5 C.F.R. part 470.
¶3 The contribution -based compensation system works by linking employees’
salaries t o their actual contributions to the agency’s mission. IAF, Tab 19 at 16.2
The system has five “broadbands,” each encompassing a salary range and a
corresponding contribution range —the higher the salary, the greater the
contribution expected and vice versa. Id. at 14, 16 -18. As a DR -IV employee
with an annual salary of $120,29 0 (not including a $29,907 locality adjustment),
the appellant was expected to have an overall contribution score of 4.3. IAF,
Tab 23 at 8. Science and engineering employees, like the appellant, are rated on
four areas of contribution: (1) Problem solving; (2) communication;
(3) technology management; and (4) teamwork and leadership. IAF, Tab 21
at 9-12, Tab 23 at 9 -10. An employee earns a score for each of these areas, and
2 Tabs 19 through 22 of the Initial Ap peal File cont ain the text of the regulation
governing the contribution -based compensation system at issue, 75 Fed. Reg. 53,076
(Aug. 30, 2010).
3
the four scores are averaged to arrive at an overall contribution score. IAF,
Tab 20 at 4, Tab 23 at 8-10. Initial contribution ratings are assessed by an
employee’s immediate supervisor and then presented to a “meeting of managers,”
who are responsible for refining the initial ratings as appropriate to arrive at a
final ratin g that is equitable in comparison to all employees under their purview.
IAF, Tab 20 at 4. A deviation of 3/10 of a point or less between expected
contribution and actual contribution is deemed acceptable. IAF, Tab 19 at 19.
¶4 If an employee earns an ove rall contribution score more than 3/10 of a point
lower than her expected score, her contribution is deemed to be inadequate and
management is required to take remedial action, which may include a contribution
improvement plan (CIP).3 Id. at 7. A CIP is analogous to a performance
improvement plan under 5 C.F.R. part 432 and replaces those procedures for
covered employees. Id. Under CIP procedures, an employee is entitled to a
reasonable amount of time (a minimum of 60 days under the demonstration
projec t) to demonstrate adequate contribution. Id. Management is obliged to
offer the employee appropriate assistance in meeting her goals. Id. At the end of
the CIP, a meeting of managers will convene to determine whether the employee
has brought her contri bution up to expectations. IAF, Tab 18 at 12. If she has
not, management has the sole discretion to initiate a reduction in pay or a
removal. IAF, Tab 20 at 7. An employee subjected to such an action has the
right to appeal to the Board under the proce dures of 5 C.F.R. § 432.106 (a). Id.
at 8.
¶5 Turning to the facts of this case, the appellant was a Program Officer in
charge of a portfolio of research projects related to systems and soft ware
development, whereby money would be allocated to promote the various fields of
research therein. Hearing Recording, May 22, 2017 (HR 1) at 18:00 (testimony
of the Chief Scientist). Like other Program Officers, the appellant was
3 These procedures may be invoked at any point during the contribution year during
which an employee’s contribution falls below the acceptable level. IAF, Tab 20 at 8.
4
responsible for prese nting her portfolio biennially to the Air Force Scientific
Advisory Board (SAB), an advisory committee of civilian experts appointed by
the Secretary of Defense to make recommendations on scientific and technical
matters. IAF, Tab 23 at 12; HR 1 at 25:25 (testimony of the Chief Scientist).
The appellant presented her portfolio to the SAB in March 2016, and the SAB
was highly critical of it. Specifically, the SAB found that the appellant’s
portfolio lacked “technical direction and rigor,” was “behind the state of the art,”
and concerned projects that had limited applica tion to agency needs. IAF, Tab 23
at 19 -20. The SAB recommended that the agency “[m]ake no further investments
in the Systems and Software portfolio until proper focus on key systems and
software research is achieved.” Id. at 20. Following this SAB feedback, on
March 11, 2016, the Director of AFOSR recommended that the appellant be
placed on a CIP. IAF, Tab 39 at 74.
¶6 On May 25, 2016, the Chief of the Engineering and Information Science
Branch issued the appellant a notice placing her on a 90 -day CIP effective
immediately. IAF, Tab 17 at 16 -24. The CIP notice identified deficiencies in
each of the appellant’s four contribution areas and explained what her expected
contribution during the CIP would be. Id. at 19 -22. The appellant was expected
to demonstrate adequate contribution by following a prescribed process to set a
new focus for the Systems and Software portfolio, as well as prepare and
articulate the portfolio’s basic research are as, strategic vision, and researcher
state -of-the-art accomplishments. Id. at 22. Her work was to culminate in a
written proposal and a presentation to agency management. Id. The final written
proposal was due on August 10, 2016, and the presentation w as scheduled for
August 23, 2016. Id. at 23. The CIP also scheduled several interim milestones
for the appellant to meet on her way to the finished product. Id.
¶7 At the close of the CIP period, on August 29, 2016, a meeting of managers
consisting of the Division Chief and the Chiefs of the Engineering and
Information Science and Physical and Biological Sciences Branches convened to
5
discuss the appellant’s contribution during the CIP.4 IAF, Tab 39 at 54. These
officials concluded that the appellant’s work during the CIP earned her only a
1.78 contribution score overall, and that she had therefore failed to demonstrate
satisfactory contribution. IAF, Tab 7 at 83 -86. They recommended her removal.
IAF, Tab 39 at 69. On August 30, 2016, the Branch Chie f5 issued the appellant a
notice of proposed removal. IAF, Tab 7 at 91 -97. After the appellant responded,
id. at 57 -79, the AFSOR Director issued a decision removing the appellant
effective November 30, 2016, id. at 52, 54 -55.
¶8 The appellant filed a Board appeal and requested a hearing. IAF, Tab 1.
Prior to the hearing, the administrative judge issued an order identifying
affirmative defenses of due process and “reprisal for protected [equal employment
opportunity (EEO)] activity or for activity.” IAF, Tab 42 at 2. After the hearing,
the administrative judge issued an initial decision finding that the agency proved
its case and that the appellant failed to prove her affirmative defenses. IAF,
Tab 49, Initial Decision (ID). Accordingly, the administrat ive judge affirmed the
appellant’s removal. ID at 39.
¶9 The appellant has filed a petition for review disputing numerous aspects of
the initial decision. Petition for Review (PFR) File, Tab 1. The agency has filed
a response, PFR File, Tab 4, and the appe llant has filed a reply to the agency’s
response, PFR File, Tab 5.6
4 Two other officials were present at the meeting, the AFOSR Chief of Operations
Management and a Management Analyst —the former to act as a technical advisor and
the latter to take notes. They had no input into the Division’s and Branch Chiefs’
assessing the appellant’s contribution. HR 1 at 3:59:55 (testimony of the Management
Analyst).
5 Unless otherwise indicated, “Br anch Chief” refers to the appellant’s immediate
supervisor, who was the Chief of the Engineering and Information Science Branch
during the relevant period.
6 After the close of the record on review, the appellant filed a motion to disqualify the
administra tive judge, supported by her correspondence with the Utah State Bar
Association Office of Professional Conduct, Utah being the jurisdiction in which the
administrative judge is licensed to practice law. PFR File, Tab 7. The appellant filed a
6
ANALYSIS
¶10 The administrative judge found that the agency had the burden to prove, by
substantial evidence, that: (1) it notified the appellant that she would be placed
on a CIP; (2) it inf ormed her of what she must do during the CIP to demonstrate
acceptable contribution and warned her that failure to do so could result in an
adverse action; (3) it gave her a reasonable opportunity to demonstrate acceptable
contribution during the CIP; and (4) her contribution during the CIP was
unacceptable. ID at 2 -3. These are the same elements and burden of proof that
the Board applied in Thompson v. Department of the Army , 122 M.S.P.R. 372 , ¶ 7
(2015), another appeal involving a removal for inadequate contribution under a
similar contribution -based compensation system demonstration project.
Nevertheless, the Board in Thomp son made no finding on the correctness of this
analytical framework, noting only that neither party disputed it. 122 M.S.P.R.
372, ¶ 7.
¶11 In this case, the appellant argues that the administrative judge should have
required the agency to prove its case by preponderant evidence. IAF, Tab 44;
PFR File, Tab 1 at 31. Specifically, she argues that the agency explicitly
removed her t o promote the “efficiency of the service,” a term found in 5 U.S.C.
chapter 75, in which the preponderant evidence standard of proof applies. PFR
File, Tab 1 at 31; IAF, Tab 7 at 91. She also notes that the governing agency
manual states that chapter 75 due process rights apply in contribution -based
actions. PFR File, Tab 1 at 31; IAF, Tab 18 at 13. We find, however, that neither
complaint wi th the Office of Professional Conduct concerning the administrative
judge’s conduct during the course of the Board proceedings, but the Office determined
that there was insufficient evidence to establish that the administrative judge engaged in
misconduct or that he should otherwise have recused himself from the appellant’s case.
Id. at 12 -13. We find that this evidence is immaterial to the outcome of the appeal and
that there is no basis under 5 C.F.R. § 1201.114 (k) for the Board to consider this
untimely filing. Therefore, we deny the appellant’s motion.
7
the applicability of due process nor the concept of the “efficiency of the service”
have anything to do with the quantum of p roof that is required in this appeal.7
¶12 We have reviewed the regulation establishing the contribution -based
compensation system, as well as the agency’s implementing manual, and we agree
with the administrative judge that substantial evidence is the approp riate standard
of proof. IAF, Tab 18 at 11 -16, Tab 20 at 7 -8, Tab 45. Most convincing is the
regulatory language that states in relevant part, “The following procedures are
similar to and replace those established in 5 CFR part 432 pertaining to
performa nce-based reduction in grade and removal actions.” IAF, Tab 20 at 7.
We find no reason to interpret these procedures as tacitly abandoning the lowered
burden of proof applicable to traditional chapter 43 appeals, particularly because
the lowered burden o f proof is such a major feature of chapter 43 and the
procedures are supposed to be “similar.”
The validity of the appellant’s contribution standards are not at issue.
¶13 The appellant appears to argue that her contribution standards were invalid
because they were not sufficiently specific. PFR File, Tab 1 at 32. However, in
his prehearing conference summary, the administrative judge did not identify the
validity of the c ontribution standards as an issue to be decided in this appeal, and
the appellant did not object to its omission. IAF, Tab 42 at 1 -2. She is therefore
precluded from raising this issue for the first time on review. See Banks v.
Department of the Air For ce, 4 M.S.P.R. 268 , 271 (1980); cf. White v.
Department of Veterans Affairs , 120 M.S.P.R. 405 , ¶ 5 (2013) (finding in a
traditional chapter 43 performance -based action, that the agency is required to
7 To the extent that the appellant is arguing that the administrative judge should have
adjudicated this appeal under the standards of 5 U.S.C. chapter 75, we disagree.
Notwithstanding the agency’s reference to the “efficiency of the service,” we find that
both the notice of proposed removal and the decision letter provided the appellant clear
and explicit notice that this was a contr ibution -based action taken under the procedures
of the contribution -based compensation system demonstration project. IAF, Tab 7
at 54, 91; see Penaloza v. Department of Health & Human Services , 4 M.S.P.R. 322 ,
326-27 (1980).
8
prove that the performance standards were valid). In any event, even if the
valid ity of the appellant’s contribution standards were at issue, we would find
that they are sufficiently specific to provide a firm benchmark for contribution.
IAF, Tab 17 at 19-22; see Henderson v. National Aeronautics & Space
Administration , 116 M.S.P.R. 96 , ¶ 20 (2011).
The agency proved by substantial evidence that it informed the appellant of what
she must do to demonstrate ac ceptable contribution during the CIP.
¶14 The administrative judge found that the agency notified the appellant that
she would be placed on a CIP, ID at 4 -18, and that it informed her of what she
must do during the CIP to demonstrate acceptable contribution an d warned her
that failure to do so could result in an adverse action, ID at 18 -21. That the
agency notified the appellant that she would be placed on a CIP appears to be
undisputed. However, the appellant disagrees that the agency adequately
informed her of what she needed to do to succeed. Specifically, she argues that
the CIP contained no scores to reach and no measure of how those scores would
be calculated. PFR File, Tab 1 at 5 -6. She also argues that the administrative
judge discussed her expected contribution using several words that did not appear
anywhere in the CIP, including “quality,” “central task,” and “narrowed focus.”
Id. at 6-8.
¶15 We find these arguments unconvincing. First, although the CIP notice itself
did not contain the numerical sc ore that the appellant needed to achieve to
succeed, we find that she was otherwise well aware, based on her receiving prior
annual contribution evaluations, that she was expected to achieve an overall
rating of 4.3.8 IAF, Tab 23 at 8. In any event, this rating was merely a numerical
expression of the appellant’s expected contribution, which was set forth
8 The appellant repeatedly faults the administrative judge for looking “beyond the four
corners of the CIP.” PFR Fi le, Tab 1 at 9, 30, 32. However, it is well -established that
an agency may inform an employee of the standards that she must meet outside the
performance improvement (or in this case contribution improvement) document itself.
Donaldson v. Department of L abor , 27 M.S.P.R. 293 , 298 (1985).
9
adequately in the CIP document in narrative form. IAF, Tab 17 at 19-22. We do
not see how appending a numerical goal to the CIP notice could have made the
agency’s expectations any clearer. Regarding the particular words that the
administrative judge used to describe or paraphrase the requirements of the CIP,
we agree with the agency that this amounts to a debate over semantics and
provides no basis to disturb the initial decision. PFR File, Tab 4 at 12 -13.
We have reviewed the CIP notice and we find that the administrative judge
correctly understood the document and accurately described it in his initial
decision. ID at 19-21. For the reasons expla ined in the initial decision, we agree
with the administrative judge that the appellant was adequately informed of what
she needed to do during the CIP to demonstrate acceptable contribution. ID
at 18-21.
The agency proved by substantial evidence that the appellant was provided a
reasonable opportunity to demonstrate acceptable contribution.
¶16 The appellant disputes the administrative judge’s finding that the CIP
provided her a reasonable opportunity to demonstrate acceptable contribution.
She argues that the CIP comprised tasks that were not part of her normal duties,
PFR File, Tab 1 at 8 n.11, that she was not afforded the full 90 days that she was
supposed to have under the CIP, id. at 11, 17 -18, 31 -32, and that she was
constrained by the directions of t he Branch Chief, who was not an expert in
computer science, id. at 7-8, 24 -25.
¶17 We have considered the appellant’s arguments, but we find them
unpersuasive. First, we disagree that the CIP tasks were outside her normal
duties. The appellant had been maintaining the Systems and Software portfolio as
part of her regular duties since 2 013. Hearing Recording, May 23, 2017, Track 2
at 8:45 (testimony of the appellant). Although the appellant may have been
required to additionally document her work on the portfolio during the CIP, we
find the CIP tasks were all directed toward improving and managing that
portfolio, and that her duties during this time were, therefore, essentially
10
unchanged. IAF, Tab 17 at 19 -23. As for the CIP’s duration, even if the
appellant was effectively allowed only 76 days to demonstrate acceptable
contribution, as she asserts, we find that this was nevertheless a sufficient amount
of time for her to do so. The Board has found that 60 or even 30 days is a
sufficient time for an employee to demonstrate acceptable performance. Lee v.
Environmental Protection Agenc y, 115 M.S.P.R. 533 , ¶ 33 (2010). Also, the
governing regulation explicitly states that 60 days is a sufficient amount of time
for a CIP . IAF, Tab 20 at 7. Furthermore, because the deadlines for the appellant
to complete and present her proposal were provided to her at the beginning of the
CIP period, she could not have relied to her detriment on agency misinformation
about what the actu al length of the CIP would be. Id. at 23. Finally, although the
appellant might have disagreed with the Branch Chief’s guidance, the
administrative judge found that the appellant’s inadequate contribution during the
CIP was attributable not to the guidan ce, but to her failure to follow it. ID
at 24-25. The appellant has not given us a sufficient basis to disturb the
administrative judge’s findings in this regard. See Haebe v. Department of
Justice , 288 F.3d 1288 , 1301 (Fed . Cir. 2002); Weaver v. Department of the Navy ,
2 M.S.P.R. 129 , 133 -34 (1980) . For the reasons exp lained in the initial decision,
we agree with the administrative judge that the agency proved by substantial
evidence that it provided the appellant an adequate opp ortunity to demonstrate
acceptable contribution. ID at 21 -25.
The agency proved by substantial evidence that the appellant’s contribution
during the CIP was unacceptable.
¶18 On review, the appellant makes several arguments regarding her
contribution during t he CIP. First, she argues that she timely completed all of the
CIP tasks and met all of the milestones. PFR File, Tab 1 at 26, 33; IAF, Tab 17
at 23. However, the administrative judge addressed this argument in his initial
decision and found that the ap pellant’s lack of contribution was not due to her
11
failure to meet any deadlines, but rather to the quality of the work that she
produced.9 ID at 26.
¶19 The appellant also disputes the administrative judge’s finding that she failed
to narrow the focus of he r portfolio as required under the CIP. PFR File, Tab 1
at 8-9; ID at 29. We agree with the appellant that her final portfolio proposal had
nominally a single focus area, IAF, Tab 7 at 99, but it also covered four
“additional” proposed focus areas, id. at 216-64. Her proposal approvingly
discussed the “extreme” breadth of the current Systems and Software portfolio
and recommended that all of the current research areas remain in addition to the
new ones that she was proposing. Id. at 130, 139 -40. Further more, the
administrative judge credited the testimony of several agency witnesses who
stated that the appellant’s final proposed portfolio was actually broader than the
one she had prior to the CIP.10 ID at 26 -28. We therefore find that the agency
present ed substantial evidence that the appellant did not focus her portfolio
during the CIP as directed.
¶20 The appellant disputes the administrative judge’s findings that her portfolio
proposal was long and rambling and that her presentation of the proposal was
deficient. PFR File, Tab 1 at 9 -11, ID at 27 -29. However, even if, on review, we
were to accept the appellant’s characterization of her work product and credit the
evidence that she cites in support, we find substantial evidence to support the
agency’s con tention that the appellant’s work product demonstrated inadequate
contribution. See 5 C.F.R. § 1201.4 (p) (defining “substantial evidence”). We
9 To the extent that the appellant is arguing that there was no quality expectation under
the CIP, w e disagree. PFR File, Tab 1 at 7; IAF, Tab 7 at 19 -23.
10 The appellant argues that the Branch Chief’s hearing testimony was contradicted by
the record of his comments at the August 29, 2016 meeting of managers, in which he
stated , “She had her area so wid e, and did that narrow dow n portfolio.” PFR File,
Tab 1 at 23. There are some legibility problems with the handwritten notes of this
meeting, but we read them as saying “did not narrow d own portfolio.” IAF, Tab 39
at 56. The appellant’s proffered inter pretation does not make any grammatical or
contextual sense.
12
therefore find no basis to disturb the admi nistrative judge’s findings on this issue.
ID at 27 -29.
¶21 The appellant specifically disputes that administrative judge’s finding that
she could determine and pursue whatever field of inquiry she believed would be
of most value to the agency because she had to wait until AFOSR approved her
proposed portfolio to pursue anything. PFR File, Tab 1 at 9; ID at 24. We find
that this argument is merely a matter of semantics. The appellant does not
dispute that she had the freedom to shape the proposed portfolio according to her
judgment, which was the central task of the CIP and was clearly what the
administrative judge was referring to. IAF, Tab 17 at 22.
¶22 The appellant also argues that because she received the results of her
successful midyear contribution revi ew the day after the CIP began, this
constituted feedback during the CIP period and she therefore passed the CIP.
PFR File, Tab 1 at 14, 33; IAF, Tab 24 at 75 -77. We disagree. Although the
appellant happened to receive her midyear review during the CIP period, this
review pertained to her contribution prior to the CIP and has no bearing on
whether she demonstrated an acceptable level of contribution during the CIP.
IAF, Tab 24 at 75 -77. She further argues that the August 29, 2016 meeting of
managers co nsidered performance issues pre -dating the CIP but did not consider
her successful midyear review in arriving at its decision. PFR File, Tab 1 at 15,
33. However, as long as the appellant failed to demonstrate acceptable
contribution during the CIP perio d, there is nothing to prevent the agency from
relying on contribution deficiencies that occurred at any time during the year
preceding the notice of proposed removal. See Brown v. Veterans Administration ,
44 M.S.P.R. 635 , 640 (1990). Furthermore, although the successful midyear
contribution review seems inconsistent with other evidence about the appellant’s
contribution leading up to the CIP, we find that there remains substantial
evidence that the appellant’s contribution as a whole was inadequate during the
time period at issue.
13
¶23 Finally, the appellant argues that the agency assessed her contribution
during the CIP period based on the “ru bric” for assessing contribution rather than
on the “expected contributions” set forth in the CIP notice. IAF, Tab 17 at 19-22,
Tab 21 at 9 -12; PFR File, Tab 1 at 19 -20. However, we find that the CIP notice
set forth both the rubric and the expected cont ribution in each area. IAF, Tab 17
at 19 -21. We therefore find nothing improper about the agency considering the
rubric to determine whether the appellant made the contributions expected of her.
¶24 For the reasons explained in the initial decision, we agree with the
administrative judge that the agency proved by substantial evidence that the
appellant’s contribution during the CIP period was unacceptable. ID at 25 -29.
The appellant has not shown that the agency committed harmful procedural error.
¶25 The appell ant argued below that the agency failed, in several respects, to
follow the pertinent manual in administering her CIP. IAF, Tab 39 at 6 -8. The
administrative judge considered these arguments as both due process and harmful
error claims, but he found that the appellant failed to prove them. ID at 36-38
& n.6. On review, the appellant disputes some of the administrative judge’s
findings.
¶26 The appellant argues that the decision to place her on a CIP was not made
by a meeting of managers, as required by the manual. PFR File, Tab 1 at 20 -21;
IAF, Tab 18 at 11. She argues that evidence of this meeting was not presented to
her until at the Board hearing and that the managers supposedly in attendance
disagreed about the details of the meeting. Thus, she argues , the most logical
conclusion is that the meeting never actually occurred. PFR File, Tabs 20 -21.
However, the Board must defer to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on observing the
demeano r of witnesses testifying at a hearing; the Board may overturn such
determinations only when it has “sufficiently sound” reasons for doing so.
Haebe , 288 F.3d at 1301 . We find that the appellant’s arguments are insufficient
to overcome the administrative judge’s findings, based on in -person hearing
14
testimony that the pre -CIP meeting of managers was convened on March 29,
2016, as required. ID at 37. This is especially so in light of the appellant’s
May 25, 2016 email in which she acknowledges that this m eeting did in fact
occur. IAF, Tab 24 at 79. We therefore agree with the administrative judge that
the appellant has not established that the agency committed any error concerning
the managers’ pre -CIP meeting. See Parker v. Defense Logistics Agency ,
1 M.S.P.R. 505 , 513 (1980) (finding that, to prove that the agency committed
harmful procedural error, the appellant must show both that the age ncy committed
procedural error and that the error was harmful).
¶27 The appellant also appears to allege that the agency committed harmful
procedural error by not allowing her the full 90 days promised in the CIP notice
to demonstrate acceptable contribution. PFR File, Tab 1 at 17. However, even
assuming that the agency committed error by effectively shortening the CIP
period, we find that the appellant has not shown it likely that she would have
demonstrated acceptable contribution even with more time allott ed. Stephen v.
Department of the Air Force , 47 M.S.P.R. 672 , 681 (1991) (finding that, to show
harmful error, an appellant must prove tha t any procedural errors by the agency
prejudiced her substantive rights by possibly affecting the agency’s decision;
harmful error cannot be presumed).
¶28 The appellant further alleges that the agency committed numerous
procedural errors leading up to the M arch 29, 2016 meeting of managers,
including its failure to discuss expectations with her at the beginning of the
appraisal cycle, failure to provide her an updated statement of duties and
experience, and providing her feedback after the March 29 meeting t hat was
inconsistent with her routine performance appraisals. PFR File, Tab 1 at 21 -23.
However, under 5 U.S.C. § 7701 (c)(2)(A), an appellant must show “harmful error
in the application of the ag ency’s procedures in arriving at its decision.” Thus,
procedures unrelated to the processing of an appellant’s removal cannot be
challenged under the harmful error analysis. Livingston v. Department of the Air
15
Force , 26 M.S.P.R. 273 , 275 (1985). The record of evidence does not support the
appellant’s claims that these errors occurred, and in any event, even if the agency
did commit t hese procedural errors, as alleged, they cannot serve as a basis for an
affirmative defense of harmful procedural error.
The appellant has not shown that she was removed in retaliation for protected
activity.
¶29 The appellant alleged that her removal was in r etaliation for four protected
activities: (1) an equal employment opportunity (EEO) complaint that went to
hearing in January 2016; (2) a May 26, 2016 complaint to the Office of Special
Counsel (OSC); (3) a 2014 Equal Pay Act claim that was still ongoing during the
relevant time period; and (4) a 2014 disclosure of physical intimidation by the
Division Chief. IAF, Tab 39 at 17 -18. The administrative judge found that some
of the officials involved in the removal process were aware of at least some of
this activity, but that none of it actually influenced the removal. ID at 30 -36.
¶30 On review, the appellant argues that the administrative judge considered
only her EEO complaint and did not address all her claims of retaliation for
protected activity. PFR Fil e, Tab 1 at 26 -28. We disagree. Notwithstanding the
heading in the initial decision under which he analyzed them, the administrative
judge addressed all four of the appellant’s alleged protected activities. ID
at 29-36. The appellant also cites several facts in support of her contention that
her removal was retaliatory, including that her OSC complaint was mentioned at
the August 29, 2016 meeting of managers, all three officials at the meeting knew
about her claim of physical intimidation, and these thr ee officials plus the
deciding official were all aware of her Equal Pay Act claim. PFR File, Tab 1
at 26-28. However, we find that these facts are not material to the outcome of
this appeal because they go chiefly to whether the relevant officials knew o f the
appellant’s protected activities, which as explained above, the administrative
judge found they did. The administrative judge’s finding that the appellant’s
removal was not an act of retaliation was based on explicit demeanor -based
16
credibility deter minations and credible testimony by the officials involved that
they did not consider the appellant’s protected activities in deciding to remove
her. ID at 33 -36. Again, the appellant has not provided the Board a sufficiently
sound reason to overturn the se determinations. See Haebe , 288 F.3d at 1301.
¶31 In further support for her claims of retaliation, the appellant alleges that she
was the only Program Officer who was not permitted to submit clarifications to
the SAB. PFR File, Tab 1 at 25 -26. However, a s the administrative judge found,
no other Program Officer’s portfolio received such a negative review from the
SAB. ID at 35. Therefore, we agree with the administrative judge that the
agency had a legitimate basis to treat these other Program Officers differently.
Id.
¶32 Finally, regarding the August 29, 2016 meeting of managers, the appellant
asserts that the Division Chief and the Chief of the Physical and Biological
Sciences Branch had the greatest motive to retaliate against her. She argues that
these two officials strong -armed the Chief of the Engineering and Information
Science Branch to go along with them in finding that she failed the CIP, and that
it was the Division Chief’s decision to recommend her removal. PFR File, Tab 1
at 28 -30. We find t hat the appellant is misconstruing the evidence. First, as
noted above, the Branch Chief did not state during the meeting that the appellant
narrowed down her portfolio. Supra ¶ 19 n. 10. Second, although the Branch
Chief initially recommended a higher c ontribution score (3.5) for the
problem -solving factor than was ultimately awarded (2.5), he also indicated at the
outset of the meeting that the appellant’s contribution in the other areas was not
as strong.11 IAF, Tab 7 at 83, Tab 39 at 55. This general ly is reflected in the
managers’ final analysis of the appellant’s CIP contribution. IAF, Tab 7 at 83-86.
Furthermore, the very purpose of the meeting of managers is to ensure an
11 We note that even a contribution score of 3.5 is well below what the appellant would
have needed to achieve as a composite score in order to meet the expected contribution
level of 4.3.
17
equitable rating process by broadening the input beyond that of the employe es’
individual supervisors. IAF, Tab 20 at 4. That the discussion this engendered
resulted an agreement to rate the appellant lower on problem solving than the
Branch Chief initially proposed is, at best, weak circumstantial evidence of
retaliation. As for the decision to recommend removal, someone at the meeting
had to be the first to raise the issue, and we do not find it surprising that it was
the senior official present. IAF, Tab 39 at 69; HR 1 at 4:06:50 (testimony of the
Management Analyst). We f ind no indication that the Branch Chiefs were
reluctant to agree.
The appellant has not shown that the administrative judge was biased.
¶33 The appellant argues that the administrative judge, a former Air Force
member, was biased based on his friendly banter w ith agency counsel, his
allegedly self -deprecating comments about his role as an administrative judge,
and his adjudication of two of the appellant’s prior appeals. PFR File, Tab 1
at 30-32.
¶34 As an initial matter, a party should not wait until after adju dication is
complete to attempt to disqualify an administrative judge. E.g., Gensburg v.
Department of Veterans Affairs , 85 M.S. P.R. 198 , ¶ 7 (2000); 5 C.F.R.
§ 1201.42 (b). The appellant was aware of all these alleged indicia of bias before
the hearing’s conclusion, yet she did not follow the Board’s regulatory p rocedures
for seeking the administrative judge’s disqualification. See 5 C.F.R.
§ 1201.42 (b)-(c).
¶35 Furthermore, we find that the appellant’s allegations, even if true, are not
sufficient to 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). 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 ,
18
1362 -63 (Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540 , 555
(1994)). Neither the administrative judge’s former association with the agency,
his friendly demeanor toward agency counsel, nor his alleged self -deprecating
hum or rise to that level. See Madison v. Department of the Air Force ,
32 M.S.P.R. 465 , 469 (1987); Morris v. Department of the Air For ce, 24 M.S.P.R.
41, 43 (1984). Nor are the administrative judge’s rulings against the appellant in
other appeals sufficient to demonstra te bias. See Caracciolo v. Department of the
Treasury , 105 M.S.P.R. 663 , ¶ 14 (2007).
The appeal must be remanded for further ad judication regarding the appellant’s
contribution during the period leading up to the CIP.
¶36 On petition for review, the appellant argues that the agency was not
justified in placing her on a CIP in the first place because her contribution leading
up to the May 25, 2016 CIP was sufficient. PFR File, Tab 1 at 12 -16, 22 -25, 28.
At the time the initial decision was issued, a longstanding line of Board case s
held that an agency is not required in a chapter 43 appeal to prove that an
appellant was performing unacceptably prior to a performance improvement plan
(PIP) . E.g., Wright v. Department of Labor , 82 M.S.P.R. 186 , ¶ 12 (1999).
Consistent with that precedent, the administrative judge did not address the issue
of whether the appellant was contributing inadequately prior to her CIP.
However, during the pendency of the petition for review in this case, the United
States Court of Appeals for the Federal Circuit held in Santos , 990 F.3d
at 1360 -61, that part of the agency’s burden under 5 U.S.C. chapter 43 is to
justify the institution of a PIP by proving by substantial evidence that the
empl oyee’s performance was unacceptable prior to that time.
¶37 Although the appeal in Santos involved a performance -based adverse action
under a more traditional performance -based appraisal system, we find that the
court’s reasoning applies equally to the contr ibution -based adverse action at issue
here. According to the documents implementing this demonstration project , when
placing an employee on a CIP, the agency is required to inform her specifically of
19
how she is failing to make expected contributions, and afford her an opportunity
to demonstrate a level of increased contribution. IAF, Tab 18 at 11-12, Tab 20
at 7. Furthermore, the agency ’s authority to place an employee on a CIP is
explicitly predicated on the employee’s contribution score falling below the
expected range. IAF, Tab 20 at 7; cf. Santos , 990 F.3d at 1360 -61 (examining
similar statutory language to conclude that that an age ncy must justify institution
of a PIP when an employee challenges a performance -based adverse action under
chapter 43). The Federal Circuit’s decision in Santos applies to all pending cases,
including this one, regardless of when the events took place. Lee v. Department
of Veterans Affairs , 2022 MSPB 11, ¶ 16 . Although the record in this appeal
already contains some evidence suggesting th at the appellant’s contribution
leading up to the CIP was unacceptable, IAF, Tab 17 at 18 -19, Tab 23 at 19 -20,
Tab 24 at 26 -67, we remand the appeal to give the parties the opportunity to
present argument and additional evidence on the issue, see Lee , 2022 MSPB 11 ,
¶¶ 15-17. On remand, the administrative judge shall accept argument and
evidence on this issue, and shall hold a supplemental h earing if appropriate. Id.,
¶ 17.
¶38 The administrative judge shall then issue a new initial decision consistent
with Santos . See id . If the agency makes the additional showing required under
Santos on remand, the administrative judge may incorporate his prior findings on
the other elements of the agency’s case and the appellant’s affirmative defenses
in the remand initial decision. See id . However, regardless of whether the
agency meets its burden , if the argument or evidence on remand regarding the
appellant’s pre -CIP performance affects the administrative judge’s analysis of the
other elements of the charge or the appellant’s affirmative defenses, he should
address such argument or evidence in th e remand initial decision. See Spithaler
v. Office of Personnel Management , 1 M.S.P.R. 587 , 589 (1980) (explaining that
an initial decisio n must identify all material issues of fact and law, summarize the
evidence, resolve issues of credibility, and include the administrative judge’s
20
conclusions of law and his legal reasoning, as well as the authorities on which
that reasoning rests).
ORDER
¶39 For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everli ng
Acting Clerk of the Board | KAPLAN_KATHLEEN_MARY_DC_0432_17_0195_I_1_REMAND_ORDER_1967043.pdf | 2022-10-06 | null | DC-0432 | NP |
4,050 | https://www.mspb.gov/decisions/nonprecedential/MALCOLM_MARIO_DC_0432_15_1154_I_1_REMAND_ORDER_1967068.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARIO MALCOLM,
Appellant,
v.
DEPARTMENT OF COMMER CE,
Agency.
DOCKET NUMBER
DC-0432 -15-1154 -I-1
DATE: October 6, 2022
THIS ORDER IS NONPRECEDENTIAL1
Mario Malcolm , Silver Spring, Maryland, pro se.
Kathryn Siehndel , Alexandria, Virginia, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal for unacceptable performance under 5 U.S.C. chapter 43 .
For the reasons set forth below, we GRANT the petition for review , VACATE the
initial decision, and REMAND the appeal to the Washington Regional Office for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
further adjudication consistent with the decision of the U .S. Court of Appeals for
the Federal Circuit (Federal Circuit) in Santos v. National Aeronautics & Space
Administration , 990 F.3d 1355 (Fed. Cir. 2021).
BACKGROUND
¶2 The appellant held the position of Patent Examiner with the agency’s U.S.
Patent and Trademark Office. Initial Appeal File (IAF), Tab 8 at 48. On
October 17, 2014, he received a written warning of unacceptable performance in
the critical element of production. IAF, Tab 5 at 49-50. The agency afforded him
a period from October 19, 2014, to February 7, 2015, to increase his production to
at least the marginal level. Id. at 4. The appellant successfully improved his
production by completing the performance improvement period (PIP) . Id. The
agency notified him that he was required to maintain at least the marginal level of
performance in the production critical element for a 1-year period from the start
of the PIP, id. at 4-5, and t hat his failure to comply with this requirement could
result in his removal. Id. at 5.
¶3 After d etermin ing that the appellant’s performance in the production critical
element was again unacceptable during the first maintenance period from
February 22 to May 16, 2015 , the agency issued him a notice of proposed
removal. IAF, Tab 4 at 44 -48. Upon consideration of his written reply, t he
agency remove d him for unacceptable performance in th e critical element of
production , effective August 18, 2015. Id. at 35-36, 40-41.
¶4 The appellant filed a Board appeal of his removal but did not request a
hearing. IAF, Tab 1 at 1-4. After a close of record conference, t he appellant
filed motions to comp el discovery and to supplement the summary of the close o f
record conference . IAF, Tab 11 at 3-6. He also submitted a detailed comparison
of two of his office actions allegedly showing that his supervisor’s multiple
requests for revisions of those actions harmed his production . Id. at 9-10, 12-28.
In an initial decision based on the written record, the administrative judge
3
affirmed the appellant’s performance -based removal. IAF, Tab 13, Initial
Decision (ID) at 3, 14-15. He also denied the appe llant’s motion s. ID at 2 n.2 .
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response. PFR File, Tab 3.
ANALYSIS
¶6 As noted, consistent with the Federal Circuit’s decision in Santos , 990 F.3d
at 1360 -63, we are remanding this appeal for further adjudication. In Santos , the
court held for the first time that, in addition to the elements of a chapter 43 case
set forth by the administrative judge, an agency must also show that the initiation
of a PIP was justified by the appellant’s unacceptable performance before the
PIP. Id. Prior to addressing the remand , however, we consider the administrative
judge’s findings on the elements of a chapter 43 appeal as they existed at the time
of the initial decision and the appellant’s arguments on review.
The appellant failed to show that the administrative judge erred, under the law in
effect at the time, in finding that the agency satisfied its burden to prove that the
appellant’s performance was unacceptable.
¶7 At the time the initial decision was issued, the Board’s case law stated that,
in a performance -based action under 5 U.S.C. chapter 43, an agency must
establish by substantial evidence2 that: (1) the Office of Personnel Management
approved its performance appraisal system and any significant changes; (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 (b)(1) (2012)3; (4) the agency warned the appellant of the
2 Substantial evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, might accept as adequate to support a conclusion,
even though other reasonable p ersons might disagree. 5 C.F.R. § 1201.4 (p). This is a
lower standard of proof than preponderance of the evidence. Id.
3 Effective December 12, 2017, the National Defense Authorization Act of 2018
recodified 5 U.S.C. § 4302 (b) to 5 U.S.C. § 4302 (c). Pub. L. No. 115 -91, § 1097(d)(1),
131 Stat. 1283, 1619 -20. Because this amendment post-dates the action at issue here,
4
inadequacies of his performance during the appraisal period and gave him a
reasonable opportunity to demonstrate acceptable performance; and (5) the
appellant’s performance remained unacceptable in at least one criti cal element .
Lee v. Environmental Protection Agency , 115 M.S.P.R. 533, ¶ 5 (2010) . The
agency may remove an employee for unsuccessful p erformance under chapter 43
after the successful completion of a PIP if: (1) the instances of unacceptable
performance a re in the same critical element involved in the PIP ; and (2) the
agency’s reliance for its action is limited to those instances of performance that
occur within 1 year of the advance notice of the PIP. Muff v. Department of
Commerce , 117 M.S.P.R. 291 , ¶ 5 (2012); see 5 C.F.R. § 432.105 (a)(1) -(3).
¶8 In his petition for review, t he appellant does not challenge the
administ rative judge’s findings that the agency met its burden of proving the first,
second, third, and fifth elements of a performance -based removal . PFR File,
Tab 1; ID at 5, 8 -10. Based on our review of the record, we find no reason to
disturb those findings. 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 & Human Services ,
33 M.S.P.R. 357 , 359 (1987) (same).
¶9 The appellant instead disputes the administrative judge’s finding that the
agency gave him a reasonable opportunity to demonstrate acceptable
performance. PFR File, Tab 1 at 5 -6; ID at 13. Specifically, he argues that his
production was lowered because his supervisor unduly delayed approving his
office actions by returning them to him multiple times for revisions . PFR File,
Tab 1 at 5-6. To support his argument , he cites to Greer v. Department of the
Army , 79 M.S.P.R. 477 (1998). Id. He also references the “Quality Major
Activities ” that are listed in his performance appraisal plan and are relevant to
we refer to the earlier codification . Harris v. Securities & Exchange Commission ,
972 F.3d 1307 , 1311 n.1 ( Fed. Cir. 2020).
5
rating the critical element of quality , and a detailed comparison of two of his
office actions . Id.
¶10 For the following reasons, we fin d that the appellant has failed to provide a
reason to disturb the initial decision ’s findings regarding the opportunity to
improve . In Greer , 79 M.S.P.R. at 487, the Board affirmed the appellant’s
performance -based removal. In finding that the agency pr oved that the
appellant’s performance was unacceptable, the Board considered an agency
official’s testimony on the shortcomings of the employee’s work product and
compared such work produc t with the agency’s examples of satisfactory work.
Id. at 485. The Board found it appropriate to defer to the agency’s judgment
regarding the adequacy of the appellant’s performance as a research scientist. Id.
¶11 Here, the appellant claims that , in contrast to the Board ’s analysis in Greer ,
the administrative judge fai led to consider his evidence allegedly showing the
adequacy of his office actions and that revisions were unnecessary . PFR File,
Tab 1 at 5 -6. We find that the administrative judge acted consistent ly with Greer
by relying on the agency’s evidence demonstrat ing that the appellant’s
performance was deficient . ID at 9-10, 12 -13; see Fernand v. Department of the
Treasury , 100 M.S.P.R. 259 , ¶ 8 (2005) (explaining that, under the substantial
evidence standard, the agency is not required to provide evidence regarding the
appellant’s performance that is more persuasive than that presented by the
appellant) , aff’d , 210 F. App’x 992 (F ed. Cir. 2006) (Table) . The administrative
judge also addressed the appellant’s submission comparing two of his actions , but
found it without merit. ID at 10. To the extent the administrative judge did not
discuss the a ppellant’s submission in depth, it does not mean that he did not
consider it. Marques v. Department of Health & Human Services , 22 M.S.P.R.
129, 132 (1984), aff’d , 776 F.2d 1062 (Fed. Cir. 1985) (Table). Moreover, as in
Greer , we find it appropriate to defer to the agency’s determination that revisions
to the appellant’s office actions were necessary before they were approved by his
supervisor . IAF, Tab 4 at 51-70. Thus, even assuming that the quality
6
component lowered the appellant’s production, we need not determine whether
his office actions satisfied the “Quality Major Activities ” contained in his
performance appr aisal plan.
¶12 Importantly, t he appellant does not dispute that he received an
approximately 3 -month PIP and an approximately 3 -month period of evaluation
during the 1 -year maintenance period , and assistance and feedback from his
supervisor during these periods . 5 C.F.R. § 432.104 ; ID at 11 -13; see Lee ,
115 M.S.P.R. 533 , ¶ 33 (find ing that a 60 -day PIP can satisfy an agency’s
obligation to provide an employee with a reasonable opportunity to demonstrate
acceptable performance) . Although the appellant successfully improved his
production during the PIP, it is undisputed that his pro duction was unacceptable
within 1 year of the beginning of the PIP . ID at 12-13. Therefore, we agree with
the administrative judge’s finding that the agency proved that it afforded the
appellant a reasonable opportunity to improve his performance before removing
him for unacceptable performance during the first maintenance period instituted
following the successful completion of the PIP . ID at 13 -14; see 5 C.F.R.
§ 432.105 (a)(1) -(3); see, e.g. , White v. Department of Veterans Affairs ,
120 M.S.P.R. 405 , ¶¶ 6-7 (2013) (finding that the agency provided the appellant
with a reasonable opportunity to improve performance before proposing a
reduction -in-grade action for his unacceptable performance following his
successful completion of a PIP by complying with 5 C.F.R. § 432.105 (a)(1) -(3)).
¶13 Next, t he appellant disputes the administrative judge’s denial of his motion
to supplement the summary of the close of record conference. PFR File, Tab 1
at 5. In request ing to supplement the summary , the appellant stated ,
“Administrative Judge acknowledged that denying the Appellant an opportunity
to perform is a viable consideration to meet the grievances of the Appellant.
Appellant presented a path to proving th e opportunity to improve performance
was denied via analysis of the submitted work product.” IAF, Tab 11 at 5. The
administrative judge denied the motion because the Board lacks the “expertise
7
[and] the authority to evaluate whether patent applications m eet the standards for
granting a patent .” ID at 2 n.2 ; IAF, Tab 10 at 2 . We find that the administrative
judge properly denied the appellant’s motion and limited the appeal to the
relevant issue of whether the agency satisfied its burden of proving the e lements
of a performance -based removal under chapter 43. IAF, Tab 10 at 1-2.
¶14 Finally, the appellant contests the administrative judge ’s denial of his
motion to compel discovery . PFR File, Tab 1 at 6. The Board will not reverse an
administrative judge’s rulings on discovery matters, including a motion to
compel, absent an abuse of discretion. Fox v. Department of the Army ,
120 M.S.P.R. 529 , ¶ 42 (2014). Here, the administrative judge denied the
appellant’s motion because he already had denied it as irrelevant during the close
of record conference and had determined that the appellant should have made the
motion during the discovery period. ID at 2 n.2; IAF, Tab 10 at 2. The appellant
has not shown error in the administrative judge ’s findings , and therefore, we find
that he has failed to show an abuse of discretion in the denial of discovery.
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.
¶15 As noted, during the pendency of the petition for review in th is 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, as 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 v. Department of Veterans Affairs ,
2022 MSPB 11, ¶ 16. Although the record in this case already contains evidence
suggesting that the appellant’s performance prior to the initiation of the PIP was
unacceptable, IAF, Tab 5 at 49 -50, we remand the appeal to give the parties the
opportunity to present argument and additional evidence on whether the
8
appellant’s performance during the period leading up to the PIP was unacceptable
in one or more crit ical elements .4 See Lee , 2022 MSPB 11, ¶¶ 15-17.
¶16 The administrative judge shall then issue a new initial decision consistent
with Santos . See id. If the agency makes the additional showing required under
Santos on remand, the administrative judge ma y incorporate in the remand initial
decision his prior findings on the other elements of the agency’s case.
ORDER
¶17 For the reasons discu ssed above, we REMAND this case to the Washington
Regional Office for further adjudication consistent with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of t he Board
4 The agency’s obligation under Santos is unaffected by the fact that th e appellant
successfully improve d his performance during the PIP, given that he suffered a
subsequent lapse in performance within the 1 -year period following the initiation of the
PIP, result ing in his removal. | MALCOLM_MARIO_DC_0432_15_1154_I_1_REMAND_ORDER_1967068.pdf | 2022-10-06 | null | DC-0432 | NP |
4,051 | https://www.mspb.gov/decisions/nonprecedential/ALLEN_MARTIN_A_DC_0752_16_0256_I_1_FINAL_ORDER_1966542.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARTIN A. ALLEN,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DC-0752 -16-0256 -I-1
DATE: October 5, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chuck Allen , Dillwyn, Virginia, for the appellant.
Jasmin A. Dabney , Landover, Maryland, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appell ant has filed a petition for review of the initial decision, which
dismissed his appeal of a removal action as untimely filed without good cause
shown. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error aff ected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 In a decision letter dated Octo ber 20, 2015, the agency informed the
appellant that he would be removed from his Postmaster position effective
October 30, 2015 , and that he had a right to appeal that action to the Board within
30 calendar days after the date of receipt of the agency’s d ecision. Initial Appeal
File (IAF), Tab 1 at 11-12. The notice further stated that, if he and the agency
“mutually agree in writing to attempt to resolve this matter through an alternative
dispute resolution process prior to your filing” a Board appeal, the time limit for
filing a Board appeal would be extended an additional 30 days. Id. at 12.
¶3 The appellant filed an appeal , which the Board ’s Washington Regional
Office received on December 29, 2015 . Id. at 3. In his appeal, h e assert ed that he
received the agency’s decision letter on October 21, 2015, but that the filing date
for the appeal sho uld have been extended by an additional 30 days based on his
filing of a request for mediation with the agency on October 20, 2015. Id. at 2, 5.
He set forth December 10, 2015, as the effective date of his removal and alleged
that the agency provided an outdated addre ss for the Board’s Washington
3
Regional Office . Id. at 5, 13. He also alleged that the agency violated his right to
due process by failing to honor a verbal agreement between his supervisors and
himself . Id. at 5. He requested a hearing. Id. at 3.
¶4 In an acknowledgment order, the administrative judge informed the
appellant that an extension of the filing date did not appear to be applicable
because there was no indication in his appeal that he and the agency ha d agreed in
writing to participate in mediation or any other alternative dispute resolution
process. IAF, Tab 2 at 3. She ordered him to file argument and evidence to show
that his appeal was timely filed or that good cause existed for the delay. Id. at 4.
¶5 In a January 12, 2016 errat um of the acknowledgment order, the
administrative judge further directed the appellant t o indicate when he mailed his
Board appeal to the outdated address provide d by the agency’s decision , the date
that the Postal Service returned the appeal to him , and the date that he re -mailed
the appeal. IAF, Tab 4 at 2. Both the appellant and the agency responded to the
administrative judge ’s order s on timeliness . IAF, Tabs 5, 8.
¶6 Without holding the requested hearing, the administrative judge issued an
initial decision , finding that the appellant did not establish good cause for the
filing delay and dismissing the appeal as untimely filed by approximately
30 days . IAF, Tab 10, Initial Decision (ID) at 1, 6. The administrative judge
found that the appellant’s removal was effective on October 30, 2015 , and that
the agen cy’s decision letter informed him of the Board filing requirements and
the effect that a mutual written agreement with the agency regarding an
alternative dispute resolution had on the filing time limit . ID at 2, 4. She noted
also that the decision infor med the appellant that the agency had denied his prior
request for mediation because “[his] case was deemed inappropriate for inclusion
in the process as a result of [his] criminal activity. ” ID at 4 (quoting IAF, Tab 4
at 11).
¶7 Regarding the filing of the appeal, the administrative judge noted that the
appellant ’s representative had provided an unsworn statement , asserting , inter
4
alia, that the appellant acted in “good faith a nd under the assumption that [his
appeal] was timely a nd December 30, 2015 was the cutoff date.” ID at 3 (quoting
IAF, Tab 5 at 1). The administrative judge further noted that he asserted that an
agency official had informed the appellant that the filing time limit for a Board
appeal would be extend ed by filing a request for mediation , and he provided
copies of email s that referenced the appellant’s mediation request . ID at 3.
However, the administrative judge found that the appellant never asserted that he
filed his appeal within the regulatory 30-day period . ID at 5. She found that the
appellant offered no reason as to why he did not follow the explicit and specific
instructions in the agency’s notice of appeal rights and file a timely appeal with
the Board when he received no response to his mediati on request. ID at 4. Thus,
she concluded that , having been informed that a written mutual agreement was
required for the extension, it was unreasonable for the appellant to assert that he
believed that the filing of the subsequent mediation request unila terally extended
the Board’s filing requirement . ID at 5.
¶8 Regarding the agency’s notice of the location to file the Board appeal, the
administrative judge noted that the address was outdated but that th e appellant
never asserted that he had timely mailed an appeal to the outdated address .
ID at 5. Although he provided a copy of an envelope, which bore the former
address and no postmark , she noted that the appellant offered no explanation or
evidence regarding the envelope or why he waited at least 5 days to re-mail the
appeal . Id. Thus, she found the appellant failed to meet his burden to
demonstrate that he had acted with due diligence or ordinary prudence in filing a
timely appeal. She did not address the appellant’s due process claim regarding
the alleged violation of a verbal agreement between h im and his supervisors
because of the dismiss al. ID at 6.
¶9 The appellant has filed a timely petition for review , and t he agency has filed
a response to his petition. Petition for Review (PFR) File, Tabs 1 , 3-5.
5
DISCUSSION OF ARGUMENTS ON REVIEW
¶10 Generally, an appellant must file an appeal with the Board no later than
30 calendar days after the effective date of the contested action or 30 calendar
days after the date of his receipt of the agency ’s decision, whichever is later .
5 C.F.R. § 1201.22 (b)(1). However, when an appellant and an agency mutually
agree in writing to attempt to resolve their dispute through an alternative dispute
resolution process prior to the timely filing of an appeal, the time limit for filing
an appeal is extended by an additi onal 30 days —for a total of 60 days. Id. An
appeal that is not filed within the applicable time limit will be dismissed as
untimely unless the appellant shows good cause for the delay . 5 C.F.R.
§ 1201.22 (c). T o establish good cause , a party must show that he exercised due
diligence or ordinary prudence under the particular circumstances of the case.
Alonzo v. Department of the Air Force , 4 M.S.P.R. 180 , 184 (1980). To
determine if an appellant has shown good cause, the Board considers the length of
the delay, the reasonableness of h is excuse and h is showing of due diligence,
whether he is proceeding pro se, and whether he has presented evidence of the
existence of circumstances beyond h is control that affected h is ability to comply
with the time limits or of unavoidable casualty or misfortune that similarly shows
a causal relatio nship to h is inability to timely file h is 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 appellant has the burden of proof on the issue of
timeliness, which he must establish by preponderant evidence. 5 C.F.R.
§ 1201. 56(b)(2)(i)(B) .
¶11 The appellant does not dispute the administrative judge’s finding that his
appeal was file d on December 26, 2015, about a month after the November 30,
2015 filing due date. PFR File, Tab 1 ; ID at 2 . The Board has noted that a delay
of this length is not minimal and does not weigh in favor of an appellant in
demonstrating good cause for a filing delay. See Marcantel v. Department of
Energy , 121 M.S.P.R. 330, ¶ 11 (2014) (noting that a 14 -day delay is not
6
minimal); cf. Walls v. Merit Systems Protection Board , 29 F. 3d 1578 , 1582 (Fed.
Cir. 1994) (holding that waiver of filing time limit was appropriate based on ,
among other considerations, the minimal nature of a 2 -day filing delay) .
¶12 Regarding the filing delay, the appellant does not identify any errors by the
admini strative judge in the initial decision. Rather, he reasserts his allegation of
lack of notice by the agency of the November 30, 2015 filing date. E.g., PFR
File, Tab 4 at 4. Specifically, he asserts that, after he received no agency
response to his mediation request, an agency District Manager should have
informed him that his Board appeal was due on Nov ember 30, 2015. E.g., id.;
IAF, Tab 5 at 1. He provides, however, no evidence and argument to support that
the agency had such an obligation. More over, h e offers no reason for the Board
to disturb the administrative judge’s finding that the agency’s decision letter
specifically notified him of the filing time limit for the Board appeal and the
effect of a mutual written agreement on th at filing date . ID at 4.
¶13 The appellant also asserts , as he did below, that he assumed that
December 30, 2015 , was the filing date in view of his filing a request to mediate,
which a labor relations official stated he should file but for which no response
was made to his request and his relative inquiries. E.g., PFR File, Tab 4 at 3;
IAF, Tab 5 at 1. However, h e presents no new and material evidence that the
filing of a request for mediation superseded the requirement of a mutual written
agreement for an extension or that the lack of an agency response to his request
and inquiries nullified the time limit for filing a Board appeal . To the extent that
the appellant argues that he was confused regarding the filing deadline, or that he
was confused during the filing per iod by other time demands, such confusion does
not establish good cause for an untimely filing when the notice of appeal rights
clearly informed him of the filing deadline . See Campbell v. Merit Systems
7
Protection Board , 208 F. App ’x 866 , 868 (Fed. Cir. 2006);2 Melendez v.
Department of Homeland Security , 112 M.S.P.R. 51, ¶ 14 (200 9). Similarly, to
the extent that he argues that he misinterpreted the filing instructions, we find this
argument does not establish good cause to waive the filing requirement . See
Grigsby v. Department of the Army , 1 M.S.P.R. 757, 758 (1980) (noting that the
alleged misinterpretation by the appellant’s representative of the Board’s filing
instructions did not constitu te good cause to waive the filing time limit).
Furthermore, the Board has declined to waive the filing requirement on the basis
of the pursuit of a remedy in another forum. Luellen v. U.S. Postal Service ,
88 M.S.P.R. 11, ¶ 10 (2001) .
¶14 The appellant reasserts that the agency ’s notice of appeal rights did not
contain the updated address for the filing of a Board appeal. E.g., PFR File,
Tab 4 at 4. The Board has found that an agency’s incomplete notice of appeal
rights is not necessarily the dispositive factor in its good cause determination, and
the Board will consider the other circumstances to determine if, taken together,
they justify wai ving the filing time limit. Mauldin v. U.S. Postal Service ,
115 M.S.P.R. 5 13, ¶ 12 (2011). The appellant has not shown that the lack of the
updated address contr ibuted in a meaningful way to his untimely filing . He does
not dispute the administrative judge’s finding that he never asserted that he sent a
timely appeal to the outdated address. He also identifie s no other circumsta nces
such as contacting or attempting to contact the Board during the filing period . As
such, we find that the appellant ’s assertion regarding the agency’s notice of an
outdated address, standing alone, provides no basis for disturbing the outcome of
the initial decision.
2 Although Campbell is an unpublished decision, the Board may follow a n unpublished
Federal Circuit decision, if, as here, it finds it to be persuasive. See Mauldin v. U.S.
Postal Service , 115 M.S.P.R. 513 , ¶ 12 (2011).
8
¶15 Based on the forego ing analysis, we affirm the initial decision dismissing
the appeal.3
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following su mmary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which ca ses fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable tim e
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular fo rum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U .S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
3 In affirming the dismissal of the appeal as untimely filed, we also deny as moot the
appellant’s D ecember 27, 2016 request to schedule a settlement hearing. PFR File,
Tab 6.
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.
9
If you submit a peti tion for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional inform ation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC r eview of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. I f so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
10
discrimination based on race, color, religion, sex, national origin, or a disabli ng
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request revi ew by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Offi ce of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for revi ew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhanc ement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
11
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in s ection
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 a ny other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ALLEN_MARTIN_A_DC_0752_16_0256_I_1_FINAL_ORDER_1966542.pdf | 2022-10-05 | null | DC-0752 | NP |
4,052 | https://www.mspb.gov/decisions/nonprecedential/GARCIA_ANTONIETA_CH_844E_19_0212_I_1_FINAL_ORDER_1966595.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANTONIETA GARCIA,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
CH-844E -19-0212 -I-1
DATE: October 5 , 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Leah Bachmeyer Kille , Lexington, Kentucky, for the appellant.
Albert Pete Alston, Jr. , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Mem ber
FINAL ORDER
¶1 The Office of Personnel Management (OPM) has filed a petition for review
and the appellant has filed a cross petition for review of the initial decision,
which reversed OPM’s reconsideration decision denying the appellant’s disability
retirement application but denied interim relief. On petition for review, OPM
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 dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
argues that the administrative judge erred in applying the Bruner2 presumption, in
finding that it failed to rebut the presumption, and in finding that the appellant’s
last posi tion with the U.S. Postal Service (USPS) was as a Distribution Clerk.
Petition for Review (PFR) File, Tab 1 at 11-17. OPM includes with its petition
for review several Postal Service 50 (PS-50) forms. Id. at 19-136. Additionally,
the appellant’s cross petition for review requests interim relief. PFR File, Tab 3
at 9-10. 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 procedu res or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that neither party has
established any basis u nder section 1201.115 for granting the petition or cross
petition for review. Therefore, we DENY the agency’s petition for review and
the appellant’s cross petition for review and AFFIRM the initial decision, which
is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).3
2 In Bruner v. Office of Personnel Management , our reviewing court found that an
employee’s removal for inability to perform the essential functions of her position
constitutes prima facie evidence that she is entit led to disability retirement. 996 F.2d
290, 294 (Fed. Ci r. 1993).
3 The additional PS -50s submitted for the first time on review do not provide a basis to
disturb the i nitial decision. PFR File, Tab 1 at 19-136. Under 5 C.F.R. § 1201.115 , the
Board ge nerally will not consider evidence submitted for the first time with a petition
for review absent a showing that it was unavailable before the record closed 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). All of the PS-50s appear to have been issued before the
close of t he record below. PFR File, Tab 1 at 19-136. OPM has not explained why it
3
¶2 Based on the Postal Service form 6075, Notice of Removal or Separation
for Disability (Not OWCP) , and the appellant’s hearing testimony that, following
a 1-year re covery period from a March 2015 surgery, her physician imposed
restrictions and advised her not to return to work and that the appellant informed
her supervisor of the restrictions and remained away from work only after her
supervisor informed her that the re were no available accommodations or
reassignments, the administrative judge correctly found that the Bruner
presumption applies in this case. Initial Appeal File (IAF), T ab 31, Initial
Decision (ID) at 3-5.
¶3 The administrative judge also found that the appellant’s last position with
the USPS was as a Distribution Clerk and that her medical conditions are
incompatible with useful and efficient service or retention in the Distribution
Clerk position. ID at 5-6, 9. However, the appellant stipulated that her last
official position with USPS was as a Sales Service/Distribut ion Associate
(SSDA). IAF, Tab 24 at 4. A stipulation is sufficient to prove the fact alleged.
Swift v. Office of Personnel Management , 48 M.S.P.R. 44 1, 445 (1991); 5 C.F.R.
§ 1201.63 . Nonetheless, the admini strative judge ultimately considered both the
positions of a Distribution Clerk and a SSDA in arr iving at her conclusion.
ID at 5-6, 9. Moreover, the appellant and her supervisor both testified that the
positions have som e overlapping duties. IAF, Tab 25, Hearing Compact Disc
(testimony of the appellant and the appellant’s supervisor). We have reviewed
the medical evidence of record and the requirements of the SSDA position, as set
forth in the position description and the testimony of the appellant and her
supervisor, and we conclude that the appellant is unable to provide useful and
efficient service in the SSDA position. Thus, any error committed by the
was unable to submit these documents below nor has it shown that they are of sufficient
weight to warrant an outcome different from that of the initial decision. Accordingly,
we have not considered them. See Russo v. Veterans Administration , 3 M.S.P .R. 345 ,
349 (1980).
4
administrative judge in determining that the appellant’s last position with the
USPS was as a Dist ribut ion Clerk, and not a SSDA, did not prejudice OPM and
does not constitute 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). Additionally, we agree with her
conclusion that OPM fa iled to rebut the Bruner presumption and that the
appellant otherwise met all of the elements required to secure disabil ity
retirement benefits. ID at 7-9; see 5 C.F.R. § 844.103 (a).
¶4 In her response to OPM’s petition for review, the appellant requested
interim relief. PFR File, Tab 3 at 9-10. The Boa rd’s regulations do not provide
for an award of interim relief at the petition for review level. To the extent the
appellant is assertin g that the administrative judge erred in declining to aw ard
interim relief below, ID at 10, the Board reviews such a claim under an abuse of
discretion standard . See, e.g. , Norton v. Department of Veterans Affairs ,
112 M.S.P.R. 248 , ¶ 8 (2009). In Steele v. Office of Personnel Management , the
Board held that, although the interim relief statutory provisions are applicable to
OPM retirement appeals, administrative judges should exercise caution in
granting interim relief in such appeals because doing so may result in OPM’s
payment of monies in contravention of its statutory authority and may necess itate
OPM’s recovery of the monies paid during the interim relief period if the Board
reverses the initial decision. 57 M.S.P.R. 458 , 461-64 (1993), aff’d , 50 F.3d 21
(Fed. Cir. 1995) (Table).
¶5 In this case, it is not necessary to determine whether the administrative
judge abused her discretion because we otherwise agree with her decision to
reverse OPM’s reconsideration decision and to order OPM to approve the
appellant’s disability retirement application. Therefore, by way of this Order, the
appellant will already receive all of the relief to which she is entitled.
5
ORDER
We ORDER OPM to grant the appel lant’s application for disability
retirement benefits. 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 t aken
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).
No later than 30 days after OPM tells the appellant that it has fully carried
out the Board’s Order, the appellant may file a petition for enforcement with the
office that issued the initial d ecision 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).
NOTICE TO THE APPELL ANT REGARDING YOUR R IGHT TO
REQUEST ATTORNEY FEE S 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 fo und at 5 C.F.R. §§ 1201.201 , 1201 .202, and 1201 .203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE O F THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
6
NOTICE OF APPEAL RIG HTS4
You may obtain re view of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described b elow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismis sal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies t o your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which op tion is most appropriate in any matter.
7
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative re ceives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
8
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowi ng disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
9
disposition of allegations of a prohibited personne l practice descri bed in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of c ompetent jurisdiction.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 fo r judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional info rmation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules o f Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any co urt of appeals of competent jurisdiction expired o n
December 27, 2017. The All Circuit Review Act, signed in to law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistlebl ower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
10
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | GARCIA_ANTONIETA_CH_844E_19_0212_I_1_FINAL_ORDER_1966595.pdf | Date not found | null | CH-844E | NP |
4,053 | https://www.mspb.gov/decisions/nonprecedential/BARABIN_MARCOS_J_DA_300A_16_0229_I_1_FINAL_ORDER_1966673.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARCOS J. BARABIN,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DA-300A -16-0229 -I-1
DATE: October 5, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Marcos J. Barabin , Laredo, Texas, pro se.
Benjamin D. Wolarsky and Jesus Ybarra , Laredo, Texas, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appeal for lack of jurisdiction . Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due d iligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appe al, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 The appellant applied for the position of Supervisory Border Patrol Agent
(SBPA) under a merit promotion job announcement for vacancies at a number of
locations . Initia l Appeal File (IAF), Tab 5 at 115, 120 -25. The agency failed to
include the appellant’s name on the certificates of eligible candidates.2 Id.
at 25-95. In response to its error, the agency placed the appellant on a priority
placement list. Id. at 117 . The appellant appealed the agency’s action ,
contending that the agency mishandled his application and in the process violated
an employment practice under 5 C.F.R. part 300 . IAF, Tab 1 at 5.
¶3 The agency concedes that the appellant received a score of 91 out of a
possible 100 based on his answers to the online occupational questionnaire and
that it erred by not including the appellant’s name on the certificates of eligible
candidates. IAF, Tab 5 at 7-8, 115, 118 . The administrative judge found that the
appellant f ailed to establish that the agency’s actions constituted employment
practices . IAF, Tab 12 , Initial Decision (ID) at 4 -6. He also found that the
2 The agency was filling many vacancies under the announcement for SBPA positions.
The same agency error that affected the appellant affected at least 78 other eligible
applicants who were also incorrectly omitted from the certificates of eligibles for the
SBPA positions. IAF, Tab 5 at 118.
3
appellant failed to establish that the Office of Personnel Management (OPM) was
involved in the adm inistration of the employment practice at issue. ID at 6 -7.3
¶4 In his petition for review, the appellant alleges that the administrative judge
misunderstood that the assignment of a rating/score is completed during the initial
phase of the promotion proce ss and in his case was completed almost a year
before he applied for the SBPA vacancy. Petition for Review (PFR) File, Tab 1.
The appellant maintains that thus he was nonselected without considering his
knowledge, skills, and abilities ( KSAs ) in violatio n of 5 C.F.R. § 300.103 .4 The
appellant also alleges that, contrary to the agency representation below, he was
not given proper priority consideration.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 An applicant for employment who believes that an employment practice
applied to him by OPM violates a basic requirement in 5 C.F.R. § 300.103 is
entitled to appeal to the Board. 5 C.F.R. § 300.104 (a); see Burroughs v.
Department of the Army , 116 M.S.P.R. 292, ¶ 15 (2011) . The Board has
jurisdiction under 5 C.F.R. § 300.104 (a) when two conditions are met: first, the
appeal must concern an employment practice that OPM is i nvolved in
administering; and second, the appellant must make a nonfrivolous allegation that
the employment practice violated one of the “basic requirements” for employment
practices set forth in 5 C.F.R. § 300.103 . Meeker v. Merit Systems Protection
Board , 319 F.3d 1368 , 1373 (Fed. Cir. 2003); Mapstone v. Department of the
Interior, 110 M.S.P.R. 122 , ¶ 7 (2008).
3 Because this appeal was dismissed for lack of jurisdiction, the administrative judge
made no findings regarding wh ether the appeal was timely filed. ID at 1 n.1.
4 The administrative judge noted that the appellant alleged below that the hiring
decision for the SBPA position was not based on KSAs. ID at 4 -5. The administrative
judge addressed the appellant’s asserti on as a challenge to the calculation of his score,
not as a total failure by the agency to consider KSAs in the application and selection
process. ID at 5.
4
¶6 The term “employment practices,” which includes the development and use
of examinations, qualification standards, tests, and other measurement
instruments, is to be construed broadly. Dowd v. United States , 713 F.2d 720 ,
723-24 (Fed. Cir. 1983); 5 C.F.R. § 3 00.101 . An individual agency action or
decision that is not a rule or practice of some kind does not qualify as an
employment practice . Holse v. Department of Agriculture , 97 M.S.P.R. 624, ¶ 6
(2004). However , an agency ’s misapplication of a valid OPM requirement may
constitute an employment pra ctice. Holse , 97 M.S.P.R. 624, ¶ 6 ; see Prewitt v.
Merit Systems Protection Board , 133 F.3d 885 , 887 (Fed. Cir. 1998). OPM need
not be immediately involved in the practice in question. Scott v. Department of
Justice , 105 M.S.P.R. 482 , ¶ 10 (2007) ; see Prewitt , 133 F.3d at 888 .
¶7 The appellant’s assertion that he was nonselected without considering his
KSAs in violation of 5 C.F.R. § 300.103 is unavailing. The Customs and Border
Patrol Merit Promotion Plan (the Plan) provides that candidates will be evaluated
for positions and receive a ratin g based on their j ob-related KSAs. IAF, Tab 4
at 31. The Plan provides further that this evaluation may be based on one or more
evaluation methods including answers to job -related questions, job -related
occupational tests, narrative response s to job KSAs or competency requirements ,
structured interviews, or other approved assessment methods. Id. at 31 -32. The
Plan provides a specific manner to determine each applicant’s rating relative to
each KSA. Id. at 40.
¶8 The appellant has not made a nonfrivolous allegation that the rating that he
received during the initial phase of the promotion process and/or based on his
answers to the online occupation questionnaire when he applied for the
specifically announced vacanc ies failed to include a determination of his KSAs
relative to the SBPA position as provided in the Plan . IAF, Tab 5 at 115. We
find that the agency’s failure to include the appellant on the certificate of
eligible s for the SBPA position wa s an irregulari ty in the selection process , rather
than an application of a specific rule, p rovision or policy , and thus does not
5
constitute an employment practice. See Prewitt , 133 F.3d at 887. The appellant
has failed to make a nonfrivolous allegation that the agency ’s action concerned an
employment practice that OPM is involved in administering and that it violated
one of the “basic requirements” for employment practices set forth in 5 C.F.R.
§ 300.103 . See Meeker , 319 F.3d at 1373.
¶9 As to the appellant’s assertion that he was not given proper priority
consideration, t he Board lacks jurisdiction . Absent Board jurisdiction based on
an appeal under 5 C.F.R. § 300.103 , the Board lacks jurisdiction over a
nonselection, including a nonselection under priority consideration.5 See
Brown v. Office of Personnel Management , 91 M.S.P.R. 314 , ¶ 7 (2002) (stating
that the Board does not have jurisdiction to review an agency's decision not to
select a particular applicant for a position ).
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
5 With his peti tion for review, the appellant submits new evidence, email
correspondence that he ha d with the agency rega rding his nonselection under priority
placement. PFR File, Tab 1. Under 5 C.F.R. § 1201.115 , the Board will generally not
consider evidence submitted for the firs t time with the petition for review absent a
showing that it was unavailable before the record was closed despite the party ’s due
diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980). The emails
that the appellant submits are dated prior to the close of the record below , and the
appellant has failed to show that they were unavailable before the record closed. In any
event, the e mails relate to the appellant’s nonselection under priority placement, a
matter over which the Board lacks jurisdiction.
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
statement of ho w courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Fail ure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have qu estions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washi ngton, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/prob ono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your re presentative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
8
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent juris diction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Feder al
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respe ctive websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BARABIN_MARCOS_J_DA_300A_16_0229_I_1_FINAL_ORDER_1966673.pdf | 2022-10-05 | null | DA-300A | NP |
4,054 | https://www.mspb.gov/decisions/nonprecedential/JACKS_GREGORY_G_DA_0432_21_0018_I_1_FINAL_ORDER_1966727.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTEC TION BOARD
GREGORY G. JACKS,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.
DOCKET NUMBER
DA-0432 -21-0018 -I-1
DATE: October 5, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joseph D. Ybarra , Esquire, San Antonio, Texas, for the appellant.
Angeline S. Reese , Esquire, and Lisa K. Paquette , Esquire, Dallas, Texas,
for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Li mon, Membe r
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his chapter 43 performance -based removal . On petition for review, the
appellant argues that the administrative judge did not properly consider whether
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any fu ture decisions. In contrast,
a precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
his performance was unacceptable prior to his placement on the agency’s
equivalent to a performance improv ement plan (PIP) and whether he was given a
reasonable opportunity to improve his perf ormance . Petition for Review (PFR)
File, Tab 1 at 9 -16. He also argues that the administrative judge did not properly
consider his claims of reprisal for filing an equal employment opportunity (EEO)
complaint and a grievance . Id. at 16 -19. Generally, w e grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application o f the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outc ome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we D ENY the petition for review. Except as expressly
MODIFIED to VACATE the administrative judge’s finding that the agency
proved by clear and convincing evidence that it would have taken the same action
absent the appellant’s protected activity , we AFFIRM th e initial decision.
¶2 The administrative judge correctly found that the agency establish ed by
substantial evidence that (1) the Office of Personnel Management approved its
performance appraisal system; (2) the agency communicated to the appellant the
perfo rmance 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 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. Initial
3
Appeal File, Tab 47, Initial Decision ( ID) at 9-23. She also correctly found that
the agency proved by substantial evidence that the appellant’s performance was
unacceptable prior to his placement on a PIP. ID at 13 -16 (citing Santos v .
National Ae ronautics & Space Administration , 990 F.3d 1355 , 1360 -63 (Fed. Cir.
2021)).2 The appellant’s arguments on review do not provide a basis to dist urb
these findings. PFR File, Tab 1.
¶3 We also agree with the administrative judge ’s conclusion that the appellant
failed to establish his affirmative defenses of reprisal for filing an EEO
complaint,3 a grievance, and making a protected disclosure, and al so failed to
show status -based disability discrimination and harmful procedural error. ID
at 24-39. The appellant’s arguments on review, which are limited to his claims of
reprisal for filing an EEO complaint an d a grievance, do not provide a basis to
disturb the initial decision. PFR File, Tab 1. Nonetheless, we more specifically
address the administrative judge’s discussion of the appellant’s whistleblower
reprisal affirmative defense to correct an error that do es not affect the outcome of
the appeal .
¶4 Specifically , the administrative judge concluded that the appellant failed
prove that he engaged in protected activity that was a contributing factor in his
removal. ID at 33 -34. Nonetheless , she proceeded to consider whether the
agency met its burden of showing by clear and convincing evidence that it would
have removed the appellant even in the absence of any protected activity. ID
2 While this case was pending on petition for review, the Board modified the standard
applicable to chapter 43 actions in light of Santos and applied that standard to all
pending cases. Lee v. Depar tment of Veterans Affairs , 2022 MSPB 11 , ¶¶ 13-16.
Because the administrative judge correctly applied the Santos standard, remand und er
Lee is not required.
3 Because we agree with the administrative judge’s finding that the appellant failed to
prove that his EEO complaint, which alleged age discrimination and harassment, was a
motivating factor in his removal, we need not reach the que stion of whether the EEO
complaint was a “but -for” cause of the removal. See Babb v. Wilkie , 140 S. Ct. 1168 ,
1177 -78 (2020).
4
at 34-35 (citing Carr v. Social Security Administration , 185 F.3d 1318 (Fed. Cir.
1999)). Because we agree with the administrative judge that the appellant failed
to establish a prima facie case of whis tleblower reprisal, it was improper for the
administrative judge to then consider whether the agency met its burden to show
by clear and convincing evidence that it would have taken the same action in the
absence of the appellant’s protected activity . See 5 U.S.C. § 1221 (e)(2).
Accordingly, we vacate the initial decision’s finding that the agency showed by
clear and convincing evidence that it would have removed the appellant even in
the absence o f his protected activity.
NOTICE OF APPEAL RIG HTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failu re to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have quest ions
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
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must fil e a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov /probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
6
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Fe deral Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be acce ssed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after yo u receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 779 60
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 “raise s no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
5 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | JACKS_GREGORY_G_DA_0432_21_0018_I_1_FINAL_ORDER_1966727.pdf | 2022-10-05 | null | DA-0432 | NP |
4,055 | https://www.mspb.gov/decisions/nonprecedential/HOBSON_FAYE_R_CH_1221_15_0470_W_1_FINAL_ORDER_1966142.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
FAYE R. HOBSON,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
CH-1221 -15-0470 -W-1
DATE: October 4, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Faye R. Hobson , Fort Campbell, Kentucky , pro se.
Robert Sutemeier , Esquire, and Melissa Martinez, Peachtree City, Georgia,
for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Me mber
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action in this individual right of action (IRA)
appeal. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal arg ument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decisio n,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 As further detailed in the initial decision, the appellant has a somewhat
complicated employment history with the agency. Initial Appeal File (IAF),
Tab 115, Initial Decision (ID) at 2 -4. Relevant to this appeal, she was employed
as a Special Education Teacher at Barkley Elementary School in Fort Campbell ,
Kentucky , for a portion of the 2005 -2006 academic year. ID at 2. While there,
the appellant made a disclosure to several officials concerning the school’s
alleged noncompliance with state and Federal special education requirements.
ID at 2-3, 7-8. Before the end of that academic year, the appellant left Barkley
Elementary and went on to other teaching positions with the agency, including
ones in Guam and Korea. ID at 3. Between 2012 and 2014, the appellant applied
for several teaching positions in the Fort Campbell schools, but was not selected
for any. ID at 3-4.
¶3 In December 2014, the appellant filed a complaint with the Office of
Special Counsel (OSC) concerning her nonselections. ID at 4; IAF, Tab 1
at 8-11. This IRA appeal followed the close of OSC ’s investigation. ID at 4;
IAF, Tab 1 at 1 -7. The adm inistrative judge found Board jurisdiction over the
appeal and held a hearing, but denied the appellant’s request for corrective action.
3
ID at 4-5, 24. The appellant has filed a petition for review. Petition for Review
(PFR) File, Tabs 1, 3. The agency has filed a response , and the appellant has
replied. PFR File, Tabs 5 -6.
¶4 Federal agencies are prohibited from taking, failing to take, or threatening
to take or fail to take, any personnel action against an employee in a covered
position because of the d isclosure of information that the employee reasonably
believes to be evidence of 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 (a)(2), (b)(8);
Mattil v. Department of State , 118 M.S.P. R. 662 , ¶ 11 (2012). To establish a
prima facie case of whistleblower reprisal in an IRA appeal such as this one, the
employee must prove, by preponderant evidence , that she made a protected
disclosure that was a contributing factor in a personnel action taken against her.
5 U.S.C. § 1221 (e)(1); Mattil , 118 M.S.P.R. 662 , ¶ 11 . If an appellant makes out
a prima facie case, the n the agency is given an opportunity to prove, by clear and
convincing evidence, that it would have taken the same personnel action in the
absence of the protected disclosure. 5 U.S.C. § 1221 (e)(1) -(2); Mattil ,
118 M.S.P.R. 662 , ¶ 11 .
¶5 The administrative judge found that the a ppellant’s disclosure concerning
the alleged noncompliance with state and Federal special education requirements
at Barkley Elementary School was protected. ID at 7 -8. However, she found that
the appellant failed to prove that this 2005 disclosure was a contributing factor in
her 2012 -2014 nonselections. ID at 8 -24. Among other things, the administrative
judge concluded that the agency officials involved in those nonselections did not
have actual or constructive knowledge of the appellant’s disclosure. ID at 7 -24.
¶6 On review, the appellant erroneously asserts that the administrative judge
conducted a clear and convincing analysis that fails to comply with the
requirements set forth by the U.S. Court of Appeals for the Federal Circuit in its
decision in Whitmore . PFR File, Tab 1 at 16 -18; see Whitmore v. Department of
4
Labor , 680 F.3d 1353 , 1368 (Fed. Cir. 2012) (recognizing that “[e]vidence on ly
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”). This argument reflects a n apparent
misunderstand ing of the legal standard and the administrative judge’s analysis.
The appellant had the initial burden of proving by preponderant evidence that
she made a protected disclosure that was a contributing factor in her
nonselections. See supra ¶ 4. Because she failed to do this , ID at 7 -24,
the burden did not shift back to the agency , and so the clear and convincing
standard explained in Whitmore did not apply.
¶7 The appellant also asserts that the administrative judge improperly
precluded her from calling w itnesses and excluded some supportive evidence.
PFR File, Tab 1 at 13 -15, 19. However, it is well established that
an administrative judge has broad discretion to regulate the course of the hearing
and to exclude witnesses and evidence that have not been shown to be relevant,
material, and nonrepetitious. E.g., Thomas v. U.S. Postal Service , 116 M.S.P.R.
453, ¶ 4 (2011); 5 C.F.R. § 1201.41 (b)(8), (10).
¶8 Concerning the disallowed witnesses, the appellant makes specific
arguments about one. PFR File, Tab 1 at 14. The appellant identified this
witness as one of her former supervisor s and a current teacher in Korea.
IAF, Tab 45 at 4, Tab 90 at 1 -2. According to the appellant, he was warned not to
hire the appellant in the past, and such testimony would have help ed her
demonstrate the reasonableness or lik elihood of the same thing happening with
respect to the nonselections at issue in this appeal. IAF, Tab 45 at 4.
The administrative judge admitted an affidavit from this individual into evidence,
IAF, Tab 104 at 8 -13, but denied him as a witness because he was never assigned
to Fort Campbell, he did not have any knowledge of the appellant’s disclosure,
and he was not involved in the pertinent nonselections, IAF, Tab 97 at 1.
5
The appellant has not identified any argument or evidence to the contrary , and s o
we will not disturb the administrative judge’s ruling .
¶9 Concerning the excluded evidence, the appellant seems to suggest that it
was pertinent to settlement discussions that took place prior to her hearing, not
her underlying allegations of reprisal. P FR File, Tab 1 at 14 -15; see generally
Herbert v. Department of Transportation , 17 M.S.P.R. 62 , 70 (1983) (recognizing
that, as a ma tter of public policy, courts exclude evidence of settlement
negotiations and terms to encourage such agreements). Based on the information
presented , the appellant has not shown that the administrative judge’s
admissibility rulings abused her broad discr etion.
¶10 The appellant next suggests that one of the agency’s witnesses, the selecting
official for some of the pertinent vacancies, was forced to testify and may have
provided false information. PFR File, Tab 1 at 16, Tab 3 at 1 -4. According to the
appell ant, that individual called her after testifying to apologize, generally, and to
suggest that he had his own complaints about how the agency had been treating
him. PFR File, Tab 3 at 1 -2. However, the appellant’s assertions on this subject
are unsworn, n ot corroborated by other evidence, and generally fail to support the
suggestion that this witness may have provided false testimony. See id .
¶11 The appellant also presents two distinct arguments concerning the scope of
this appeal. She first argues that the instant appeal should have been limited to
alleged retaliation concerning two nonselections, but the administrative judge
considered several more. PFR File, Tab 1 at 20 . In reviewing the record,
it appears that the appellant did, at times, limit her allegations to only two
nonselections. See, e.g., IAF, Tab 17 at 1, Tab 43 at 1 -2. However, at other
times, the appellant identified several others. See, e.g., IAF, Tab 19 at 2 -4,
Tab 44 at 1 -2, Tab 90 at 3; see also IAF, Tab 97 at 1 -2. The appellant’s closing
brief repeatedly r eferenced “eight non -selections, ” and we find no indication that
she otherwise intended to limit the scope of this appeal to a lesser number of
vacancies. IAF, Tab 107 at 2. T herefore, we discern no error in the
6
administrative judge ’s consideration of all eight vacancies raised by the appellant .
See ID at 12 -18.
¶12 Separately, the appellant appears to suggest that the administrative judge
improperly limited the scope of this ap peal to her allegation of whistleblower
reprisal, rather than also considering other allegations, including ones o f
discrimination and reprisal for having engaged in equal employment opportunity
(EEO) activity . PFR File, Tab 1 at 24. For the reasons that follow, we are not
persuaded .
¶13 The Board’s authority in IRA appeals extends not only to allegations of
reprisal for disclosures protected under 5 U.S.C. § 2302 (b)(8), but also activity
protected un der 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). Salerno
v. Department of the Interior , 123 M.S.P.R. 230 , ¶ 5 (2016). The appellant’s
claims on review raise the issue of whether her EEO activity falls within the
scope of either 5 U.S.C. § 2302 (b)(9)(A)(i) or (b)(9)(B), and thus within the
Board’s IRA jurisdiction.2
¶14 Section 2302(b)(9)(A)(i) includes the filing of a complaint that seeks to
remedy whistleblower reprisal, but does not include complaints that solely raise
claims of reprisal for matters covered by Title VII. Edwards v. Department of
Labor , 2022 MSPB 9 , ¶¶ 24 -25; see Mudd v. Department of Veterans Affairs ,
120 M.S.P.R. 365 , ¶¶ 6 -7 (2013) (recognizing that the Board’s jurisdiction in IRA
appeals was expanded to cover claims of reprisal for an employee filing her own
grievance, but only if the grievance sought to remedy whistleblower reprisa l).
Section 2302(b)(9)(B) includes an appellant’s lawfully assisting another
individual in the exercise of any appeal, complaint, or grievance right granted by
any law, rule, or regulation. See 5 U. S.C. §§ 1221 (a), 2302(b)(9)(B); Alarid v.
Department of the Army , 122 M.S.P.R. 600 , ¶ 12 (2015).
2 The Board cannot consider the appellant’s allegations outside this IRA appeal because
the Board lacks direct jurisdiction over her nonselections. See Morales v. Social
Security Administration , 108 M.S.P.R. 583 , ¶¶ 5 -6 (2008).
7
¶15 Throughout this appeal, the appellant’s submissions have been broad and
difficult to follow. See generally Keefer v. Department of Agriculture ,
92 M.S.P.R. 476 , ¶ 18 n. 2 (2002) (recognizing that the Board is not obligated to
pore through the record to make sense of various allegations in a voluminous
record; an appellant is required to articulate claims with reasonable clarity and
precision or risks being found to have failed to meet her burden). For example,
after the administrative judge issued a jurisdictional order explaining the Board’s
limited authority, the appellant submitted a pleading in which she alleged that the
agency was “engaging in acts of race -based domestic terrorism identified as
segregation, discrimination, retaliation and re prisal.” IAF, Tab 9 at 9.
She further alleged that the agency had forced her to work without civil rights or
liberties. Id. The appellant attached extensive evidence t o this pleading, but
much of it was unexplained and the relevance was not readily apparent.
Id. at 31-174. In a separate jurisdictional response, the appellant indicated that
she had filed numerous EEO complaints, including seve n since April 2012,
as well as two civil lawsuits. IAF, Tab 17 at 2. She also indicated that she was
listed as a witness in disputes that three other employees had with the agency
since 2012. Id. at 4.
¶16 On the one hand, we found no indication that the appellant’s own EEO
activi ty sought to remedy whistleblower reprisal, as required to implicate section
2302(b)(9)(A)(i). On the other hand, the appellant’s claims that she was
identified as a witness in disputes involving other employees does implicate
section 2302(b)(9)(B) and th e Board’s authority in an IRA appeal such as this.
Yet, according to the administrative judge’s summary of a subsequent status
conference, the appellant appeared to limit the purview of this instant IRA appeal
to her 2005 disclosure, indicating that she i ntended to pursue other claims before
the Equal Empl oyment Opportunity Commission. IAF, Tab 21 at 1 -2. Though
given the opportunity to object to this summary, the appellant did not do so .
IAF, Tab 25 at 1. But t he appellant did continue to reference he r various
8
complaints and EEO activity, generally, throughout the remainder of the
proceedings. E.g., IAF, Tab 107.
¶17 To the extent that the administrative judge may have erred by failing to
address the appellant’s allegations that she was a witness for othe r employees in
their disputes with the agency, which implicates section 2302(b)(9)(B), we find
the error harmless. The Board’s jurisdiction in this IRA appeal is limited to th ose
issues raised before OSC . Chambers v. Department of Homeland Security ,
2022 MSPB 8 , ¶ 10. An appellant may demonstrate exhaustion through her initial
OSC complaint or correspondence with OSC, other sufficiently reliable evidence
such as an affidavit or declaration attesting that she raised with OSC the
substance of the facts in her Board appeal , or unrebutted statements to that effec t
on a certified initial appeal form . Id., ¶ 11 & n.7 .
¶18 The administrative judge explained the exhaustion requirement when he
instructed the appellant to meet her jurisdictional burden . IAF, Tab 3 at 2 -5.
Yet the appellant’s pleadings suggest that the only activity she described to OSC
was her own EEO complaints that did not implicate section 2302(b)(9)(B).
E.g., IAF, Tab 1 at 10 -33. This conclusion is based on letters the appellant sent
to OSC and OSC’s responses, id., as well as the absence of other evidence,
such as her original OSC complaint form or sworn assertions that she exhausted
additional matters with OSC , e.g., IAF, Tab 1 at 7, Tab 9 at 1-3, 9, Tab 11 at 3 -4,
Tab 17 at 1 -4. Accordingly , the appellant failed to establish jurisdiction over any
claim that her nonselections were the product of reprisal for having bee n a
witness for other employees in their complaints against the agency , rendering any
error on the part of the administrative judge in not addressing th is activity
harmless .
¶19 The ap pellant next asserts that the administrative judge’s decision contains
errors concerning her history of employment and the bases for her movement
among various positions. PFR File, Tab 1 at 24 -25. However, the appellant has
failed to show how these purpo rted errors caused any harm. See Panter v.
9
Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) (recognizing that
an adjudicatory err or that is not prejudicial to a party’s substantive rights
provides no basis for reversal of an initial decision) .
¶20 Finally, the appellant submitted hundreds of pages of documents on review.
PFR File, Tab 1 at 14, 33 -318, Tab 3 at 7 -46, Tab 6 at 13-29. Under 5 C.F.R.
§ 1201.115 (d), the Board will not consider evidence submitted for the first time
with the petition for review absent a showing that it was unavailable before the
record wa s closed despite the party’s due diligence. Avansino v. U.S. Postal
Service , 3 M.S.P.R. 211 , 214 (1980). 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.
Grassell v. Department of Transportation , 40 M.S.P.R. 554, 564 (1989).
Furthermore, the evidence must be 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). Upon review, it appears that significant portions of
the documents attached on review are duplicates of documents already included in
the record below. Compare , e.g., PFR File, Tab 1 at 33-41, with IAF, Tab 43
at 1-6, Tab 90 at 1 -4. In addition , the appellant has provided these voluminous
documents without any substantive explanation as to their relevance . Therefore,
to th e extent that the documents are not duplicative of ones already included in
the record, we find that the appellant has failed to show that they constitute new
and material evidence.
¶21 Accordingly, we deny the petition for review, affirm the initial decision,
and find no corrective action is warranted in this case.3
3 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
10
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims det ermines the time limit for seeking such
review and 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
Syst ems Protection 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 appropria te one to review your case,
you should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
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 advi se which option is most appropriate in any matter.
11
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants b efore the Federal Circuit.
The Board neither endorses the services provided by any attorney nor warrants
that any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative re ceives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
12
to waiver of any requirement of prepayment of fees, costs, or other security.
See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your rep resentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail,
the address of the EE OC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
13
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in se ction 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Fede ral Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are intere sted in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appel lants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
14
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HOBSON_FAYE_R_CH_1221_15_0470_W_1_FINAL_ORDER_1966142.pdf | 2022-10-04 | null | CH-1221 | NP |
4,056 | https://www.mspb.gov/decisions/nonprecedential/ADAMS_CHARLES_DERECK_DC_3443_22_0386_I_1_FINAL_ORDER_1966351.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHARLES DERECK ADAMS ,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DC-3443 -22-0386 -I-1
DATE: October 4, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Charles Dereck Adams , Herndon, Virginia, pro se.
William R. Di Iorio , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the i nitial decision, which
dismissed his appeal for lack of jurisdiction. On review, the appellant argues,
among other things , that the revocation of his security clearance was due to
discrimination and that the Defense Intelligence Agency improperly failed to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
recuse itself from the security clearance investigation and the revocation process .2
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains er roneous 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 ap peal 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 RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
2 The appellant has filed several petitions for review in different Board appeals, which
the Board will address separately.
3 Because t he Board lacks jurisdiction over this appeal, we find it unneces sary to
consider the appellant’s motion to compel. Barry v. Department of the Army ,
44 M.S.P.R. 432 , 436 n.3 (1990) (stating that becaus e the Board lacked jurisdiction
over the appeal, there was no need to consider the appellant’s motions, including a
motion to compel, in his petition for review).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the n otice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how cou rts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure t o file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
containe d within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
4
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circui t), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their resp ective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
5
and your rep resentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EE OC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in se ction 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
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 Feder al Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circ uit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interes ted in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appell ants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ADAMS_CHARLES_DERECK_DC_3443_22_0386_I_1_FINAL_ORDER_1966351.pdf | 2022-10-04 | null | DC-3443 | NP |
4,057 | https://www.mspb.gov/decisions/nonprecedential/KAPLAN_KATHLEEN_MARY_DC_1221_15_1065_W_1_REMAND_ORDER_1965668.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KATHLEEN MARY KAPLAN ,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER S
DC-1221 -15-1065 -W-1
DC-1221 -16-0503 -W-1
DATE: October 3, 2022
THIS ORDER IS NONPRECEDENTIAL1
Kathleen Mary Kaplan , Arlington, Virginia, pro se.
Jeremiah Crowley , Joint Base Andrews, Maryland, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
REMAND ORDER
¶1 The appellant has filed petition s for review of the initial decision s, which
dismissed her individual right of action (IRA) appeals for lack of jurisdiction .
For the reasons discussed below, we GRANT the petition s for review and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
REMAND the case s to the Washington Regional Office for further adjudication in
accordance with this Remand Order.
BACKGROUND
¶2 The appellant filed two IRA appeals —one on August 17, 2015, Kaplan v.
Department of the Air Force , MSPB Docket No . DC -1221 -15-1065 -W-1, Initial
Appeal File ( 1065 IAF), Tab 1, and one on April 14, 2016, Kaplan v. Department
of the Air Force , MSPB Docket No. DC -1221 -16-0503 -W-1, Initial Appeal File
(0503 IAF), Tab 1 . In these appeals, the appellant alleged that the ag ency
subjected her to several personnel actions, including a reprimand, a suspension, a
negative contribution evaluation, and depriv ing her of fellowship opportunities, in
retaliation for disclosures concerning improper workplace relationship s, misuse
of Government funds , violation of hiring and appraisal rules, and physical threats
against her. 1065 IAF, Tab 6 at 21-33; 0503 IAF, Tab 7 at 12 -30. The
administrative judge joined the appeals for processing.2 1065 IAF, Tab 19 at 1.
¶3 The administrative judge found that the appellant exhausted her
administrative remedies wit h the Office of Special Counsel (OSC) and that she
made a nonfrivolous allegation that at least one of her disclosures was protected
and was a contributing factor in at least one personnel a ction. Id. He therefore
found that the appellant established jurisdiction over the joined appeals, and he
scheduled a hearing on the merits. 1065 IAF, Tab 19 at 1 , Tab 27. The appeals
then were reassigned to another administrative judge. 1065 IAF, Tab 43.
¶4 Prior to the scheduled hearing, the administrative judge issued two separate
initial decisions dismissing the appeals of lack of jurisdiction. 1065 IAF, Tab 52 ,
Initial Decision (1065 ID); 0503 IAF, Tab 52, Initial Decision (0503 ID). In both
cases , the administrative judge found that the appellant failed to make a
2 Althoug h the order states that the appeals were consolidated, we find that they were
joined. See 5 C.F.R. § 1201.36 (a).
3
nonfrivolous allegation that any of her disclosu res were protected. 1065 ID
at 7-10; 0503 ID at 7 -12.
¶5 The appellant has filed identical petitions for review in both appeals.
Kaplan v. D epartment of the Air Force , MSPB Docket No. DC -1221 -15-1065 -
W-1, Petition for Review (1065 PFR) File, Tab 1; Kaplan v. Department of the
Air Force , MSPB Docket No. DC -1221 -16-0503 -W-1, Petition for Review (0503
PFR) File, Tab 1 . She expresses confusion about whether the appeals remain
joined, and she objects to the dismissals for lack of jurisdiction on the basis that
the original administrative judge assigned to these appeals already found that she
met her jurisdictional burden. 106 5 PFR File, Tab 1 at 1 -12. She also disputes
the substance of the initial d ecisions. Id. at 1 2-33. The agency has filed
responses to the petitions for review, 1065 PFR File, Tab 4; 0503 PFR File,
Tab 4, and the appellant has filed replies to the agency’ s responses, 1065 PFR
File, Tab 5; 0503 PFR File , Tab 5.3
3 After the close of the record on review, the appellant filed motion s to disqualify the
administrative judge. 1065 PFR File, Tab 7; 0503 PFR File, Tab 7. We deny the
appellant’s motions as untimely. Under 5 C.F.R. § 1201.42 (b), a party must file such a
motion as soon as she has reason to believe that there is a basis for disqualification. In
this case the appellant was aware of the alleged bias, conflict of interest, and improper
comments underlying her moti ons for disqualification before she filed her petition s for
review, 1065 PFR File, Tab 7 at 17; 0503 PFR File, Tab 7 at 17, yet she waited more
than a year after the close of the record to file her motion s for disqualification. The
delay was apparently du e in part to the appellant’s decision to await the outcome of a
complaint that she filed against the administrative judge with the Utah State Bar Office
of Professional Conduct, Utah being the jurisdiction in which the administrative judge
is licensed to p ractice law. However, the Office of Professional Conduct determined
that there was insufficient evidence to establish that the administrative judge engaged in
misconduct or that he should otherwise have recused himself from the appellant’s case s.
1065 PF R File, Tab 7 at 12 -13; 0503 PFR File, Tab 7 at 12 -13. Hence, this evidence
provides no support for the appellant’s motion s and no basis for the Board to consider
her untimely filing s under 5 C.F.R. § 1201.114 (k). Moreover, we note that the
appellant waited an additional 7 months to file her motion s after the Office of
Professional Conduct issued its letter.
4
ANALYSIS
¶6 Based on how these appeals were proc essed below, it is not clear whether
they remain joined for processing. There does not appear to have been an order
to undo the joinder action, yet the appeals were dismissed in separate initial
decisions. To clarify matters at this stage of the proceedings , we JOIN these
appeals . The parties should continue to follow the instructions in the original
joinder order and file all of their submissions under the lead docket number until
further notice. 1065 IAF, Tab 19 at 1.
¶7 The Board has jurisdiction over an IRA appeal if the appellant exhausts her
administrative remedies before OSC and makes no nfrivolous allegations that
(1) she made a disclosure described under 5 U.S.C. § 2302 (b)(8) or engaged in
protected activity described under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C) , or (D),
and (2) the disclosure or protected activity was a contributing factor in the
agency ’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302 (a). Linder v. Dep artment of Justice , 122 M.S.P.R. 14 , ¶ 6 (2014).
Although the administrative judge originally assigned to these appeals found th at
the appellant met her jurisdictional burden, there is no procedural rule to prevent
that order from being reconsidered and reversed. See, e.g. , Van Lancker v.
Department of Justice , 119 M.S.P.R. 514, ¶ 3 (2013 ); Williams v. Defense
Logistics Agency , 34 M.S.P.R. 54, 57-58 (1987). Nevertheless, for the reasons set
forth below, we find that the appellant has, in fact established jurisdi ction over
her appeal s.
¶8 Specifically, the initial jurisdictional ruling was that the appellant made a
nonfrivolous allegation that she disclosed an abuse of authority when she reported
to multiple agency officials that her supervisor had a n “unprofessional
relationship” with one of his subordinates and was allowing her to misuse travel
funds and work less time than she was reporting on her time cards . 1065 IAF,
Tab 6 at 24 -25, Tab 19 at 1. However, the ruling in the initial decision was that
the appellant failed to make a nonfrivolous allegation that she reasonably
5
believed this disclosure evidenced gross mismanagement or a gross waste of
funds. 1065 ID at 8 -9; 0503 ID at 8 -9. The administrative judge does not appear
to have considered whether the appellant’s disclosure might have evidenced an
abuse of authority, as the first administrative judge found. 1065 ID at 8 -9;
1065 IAF, Tab 19 at 1. Based on our review of the record, we agree with the
initial ruling. An “abuse of authority” is an ar bitrary or capricious exercise of
power by a F ederal official or employee that adversely affects the rights of any
person or that results in personal gain or advantage to himself or to preferred
other persons. Herman v. Department of Justice , 115 M.S.P.R. 386 , ¶ 11 (2011) .
We find that the supervisor’s actions as the appellant desc ribes them —
preferential treatment of a subordinate b ased not on meri t but on a personal
relationshi p—could fall within this definition . 1065 IAF, Tab 6 at 24 -25; see
Sirgo v. Department of Justice , 66 M.S.P.R. 261 , 267 (1995) . We also find that
the appellant made a nonfrivolous allegation that she reasonably beli eved her
disclosure evid enced violation s of a law, rule, or regulation concerning tim e and
attendance reporting and use of G overnment travel funds .
¶9 We further find that the appellant made a nonfrivolous allegation under the
knowledge/timing test of 5 U.S.C. § 1221 (e), that this disclosure was a
contributing factor in a formal repriman d—a personnel action under 5 U.S.C.
§ 2302 (a)(2)(A)(iii). See Rice v. Department of Agriculture , 97 M.S.P.R. 501 ,
¶ 15 (2004) . Specifically, the appellant alleged that she made this disclosure to
her supervisor on August 7, 2012, and that her supervisor issued her a reprimand
on October 23, 2013. 1065 IAF, Tab 6 at 23, 25, Tab 7 at 81 ; see Peterson v.
Department of Veterans Affairs , 116 M.S.P.R. 113 , ¶ 16 (2011) ( finding that
personnel actions taken within 1 to 2 years of the protected disclosure satisfy the
timing prong of the knowledge /timing test). Finally, we find that the appellant
exhausted her administrative remedies on this issue before OSC. 1065 IAF, Tab 1
at 56 -57, Tab 7 at 8, 12. We therefore agree with the initial ruling that the
appellant has established jurisdiction over her appeal s. IAF, Tab 19 at 1.
6
¶10 The appellant has raised numerous ot her disclosures in these appeals —as
many as 18 others —although there appears to be some overlap among the claims
raised in the two appeals. 1065 IAF, Tab 6 at 22 -33; 0503 IAF, Tab 7 at 12 -30.
The administrative judge f ound that the appellant failed to make a nonfrivolous
allegation that any of the se other disclosures were protected because they did not
concern gross mismanagement or a gross waste of funds .4 1065 ID at 7-9;
0503 ID at 8 -9. Again, the administrative jud ge does not appear to have
considered whether any of these other disclosures might have evidenced any other
category of danger or wrongdoing under 5 U.S.C. § 2302 (b)(8). On remand, the
administrat ive judge should conduct an individualized analysis, as appropriate,
for each of these other disclosures to determine whether any of them might be
protected as evidencing a violation of law, rule, or regulation, an abuse of
authority, or a substantial and specific danger to public health and safety. See
Horton v. Department of Veterans Affairs , 106 M.S.P.R. 234 , ¶ 16 n.* (2007)
(determining that t he Board does not require, as a basis for its jurisdiction, that an
appellant in an IRA appeal correctly label a category of wrongdoing under the
Whistleblower Protection Act (WPA) ). Furthermore, to the extent that any of the
appellant ’s disclosures were to the agency ’s Inspector General or to OSC, the
administrative judge should consider whether they are protected under 5 U.S.C.
§ 2302 (b)(9)(C).
¶11 The administrative judge made some more specific findings regarding two
of the appellant’s disclosures. Specifically, he found that the appellant’s
disclosure concerning the legality of an agency performance appraisal process
was not protected under the WPA because she made it in the cont ext of judicial
review proceedings of an Equal Employment Opportunity Commission decision.
4 The administra tive judge relied, in part, on case law stating that gross mismanagement
must include an element of blatancy. 1065 ID at 8; 0503 ID at 8. This case law has
been explicitly overruled. White v. Department of the Air Force , 391 F.3d 1377 , 1383
(Fed. Cir. 2004 ).
7
0503 IAF, Tab 7 at 23; 0503 ID at 10 -11. He also found that the appellant failed
to make a nonfrivolous allegation that her disclosure concerning the conduct of an
agency attorney was not protected under the WPA because she made it in the
context of equal employment opportunity proceedings . 0503 IAF, Tab 7 at 2 9;
0503 ID at 11 . We agree. See Serrao v. Merit Systems Protection Board , 95 F.3d
1569 , 1576 (1996); Fisher v. Department of Defense , 52 M.S.P.R. 470 , 473
(1992). We therefore affirm the administrative judge’s finding that the appellant
failed to make a nonfrivolous allegat ion that either of these two disclosures were
protected.5
ORDER
¶12 For the reasons discussed above, we remand these cases to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
5 The administrative judge also found that the appellant failed to make a nonfrivolous
allegation that either of these two disclosures wer e a contributing factor in any
personnel action. 0503 ID at 11. In light of our finding that these disclosures were not
protected, we decline to reach the issue of contributing factor. | KAPLAN_KATHLEEN_MARY_DC_1221_15_1065_W_1_REMAND_ORDER_1965668.pdf | 2022-10-03 | null | S | NP |
4,058 | https://www.mspb.gov/decisions/nonprecedential/OKLEBERRY_MARISTELLA_DE_3443_17_0284_I_1_FINAL_ORDER_1965724.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARISTELLA OKLEBERRY ,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
DE-3443 -17-0284 -I-1
DE-0752 -20-0094 -I-1
DATE: October 3, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kenneth Miller , Ogden, Utah, for the appellant.
Jason D. Marsh , Esquire, Hill A ir Force Base, Utah, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has petitioned for review of th e June 26, 2017 initial decision
in Okleberry v. Department of the Air Force , MSPB Docket No. DE -3443-17-
0284 -I-1, Petition for Review (0284 PFR) File, Tab 1 , and the March 27, 2020
initial decision in Okleberry v. Department of the Air Force , MSPB Docket 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
DE-0752 -20-0094 -I-1, Petition for Review File, Tab 1 . We now JOIN these
appeals for processing ,2 and, f or the reasons set forth below, we DISMISS the
appeals as settled.
¶2 After the filing of the petition s for review, the agency requested that the
appeals be dismissed on the basis of a document entitled “ GLOBAL
SETTLEMENT AGREEMENT” signed and dated by the parties on June 23,
2022. See 0284 PFR File, Tab 5 at 7.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it. See
Massey v. Office of Personnel Management , 91 M.S. P.R. 289 , ¶ 4 (2002),
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (hold ing that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement
disposing of these appeals , understand its terms, and agree that the agreement
will not be entered into the record for enforcement by the Board. See 0284 PFR
File, Tab 5 at 6 (providing that enforcement shall lie with the Equal Employment
Opport unity Commission) . Accordingly, we find that dismissing the appeals
with prejudice to refiling (i.e., the parties normally may not refile th ese appeal s)
is appropriate under these circumstances. As the parties do not intend for the
2 Further c itations herein will be to the lead case, MSPB Docket No. DE -3443 -17-0284 -
1 (0284 PFR File) .
3
Board to enforce the t erms of the settlement agreement, we do not enter the
settlement agreement into the record for enforcement.
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of avail able appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall withi n their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may re sult in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the app ropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of A ppeals for the Federal Circuit, which must be received by the court
3 Since the issuance of the initial decision in this matter, the Board may have updated
the no tice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for revie w to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
5
you do, then you must file with the district court no later than 30 calendar da ys
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision . 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20 013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, 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 “Gu ide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warr ants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | OKLEBERRY_MARISTELLA_DE_3443_17_0284_I_1_FINAL_ORDER_1965724.pdf | 2022-10-03 | null | DE-3443 | NP |
4,059 | https://www.mspb.gov/decisions/nonprecedential/CARGILE_DEBBIE_L_CH_0752_14_0056_I_2_REMAND_ORDER_1965892.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DEBBIE L. CARGILE,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER S
CH-0752 -14-0056 -I-2
CH-752S -13-2680 -I-2
DATE: October 3, 2022
THIS ORDER IS NONPRECEDENTIAL1
Stephen T. Fieweger , Davenport, Iowa, for the appellant.
Eric J. Teegarden , Esquire, Fort McCoy, Wisconsin, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leav itt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review and the agency has filed a cross
petition for review of the initial decision, which reversed the appellant’s 15-day
suspension and mitigated her removal to a 14 -day suspension. For th e reasons
discussed below, we G RANT the cross petition for review and REMAND the case
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and a dministrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
to the Central R egional Office for further adjudication in accordance with this
Remand Order. We find that a ruling on the petition for review would be
premature at this time.
BACKGROUND
¶2 At all times relevant to this appeal, the appellant was a Human
Resources Specialist, GS -0201 -09, at the agency’s Rock Island Arsenal
in Rock Island, Illinois. Cargile v. Department of the Army , MSPB Docket
No. CH-0752 -14-0056 -I-1, Initial Appeal File (0056 IAF), Tab 6, Subtabs 4a, 4j,
4n. On August 20, 2012, the agency proposed to suspend the appellant for
14 days on charges of failure to follow directives and negligent performance of
duties. Id., Subtab 4r. The appellant was provided an opportunity to respond in
person and/or in writing with in 7 days after receipt of the proposal. Id. On
August 31, 2012, the agency amended the proposal notice to add a charge of
conduct unbecoming a Federal employee, and the appellant was provided an
additional 4 days to respond. Id., Subtab 4q. The appellant provided a
supplemental written response on September 5, 2012, and on September 28, 2012,
the agency issued a decision to suspend the appellant for 14 days. Id., Subt ab 4p.
¶3 The appellant filed a grievance, and the agency granted partial relief,
requiring her to serve 6 days of the suspension, beginning October 22, 2012, and
holding the remainder in abeyance pending the successful completion of a 90 -day
detail. Id., Subtab 4o. The detail began December 3, 2012, and was subsequently
extended for another 90 days. Id., Subtabs 4k, 4m. By memorandum dated
June 14, 2013, the agency informed the appellant that her performance on the
detail was less than successful and th at she would therefore serve the remainder
of her suspension, beginning June 17, 2013. Id., Subtab 4k. The parties have
stipulated that, due to administrative error, the two periods of suspension
combined for a total of 15 calendar days. Hearing Transcr ipt (HT) at 30
(statement of the administrative judge). It is undisputed that the agency did not
3
provide the appellant with notice of Board appeal rights as to the suspension
action, either in the September 28, 2012 decision letter or the June 14, 2013
memorandum that reinstated the unserved portion of the suspension. HT at 30 -32
(testimony of the proposing official); 0056 IAF, Tab 6, Subtabs 4k, 4p.
¶4 On August 1, 2013, the agency proposed to remove the appellant on a
charge of negligent performance of duty, supported by 10 specifications.
0056 IAF, Tab 6, Subtab 4h. The appellant responded orally and in writing. Id.,
Subtabs 4d -4g. The deciding official sustained 8 of the 10 specifications, and on
September 26, 2013, he notified the appellant of his decision to sustain the
proposed removal. Cargile v. Department of the Army , MSPB Docket
No. CH-752S -13-2680 -I-1, Initial Appeal File (2680 IAF), Tab 26. The appellant
was removed effective September 27, 2013. 0056 IAF, Tab 6, Subtab 4a.
¶5 The appellant filed appeals of the suspension and removal actions.
2680 IAF, Tab 1; 0056 IAF, Tab 1. The appeals were joined for hearing
purposes, and the administrative judge conducted a hearing on July 25, 2014. HT
at 4. Both appeals were dismissed without prejud ice and automatically refiled.
Cargile v. Department of the Army , MSPB Docket No. CH -752S -13-2680 -I-2,
Refiled Appeal File (2680 RAF), Tabs 1-2; Cargile v. Department of the Army ,
MSPB Docket No. CH -0752 -14-0056 -I-2, Refiled Appeal File (0056 RAF),
Tabs 1-2.
¶6 On May 16, 2016, the administrative judge issued an initial decision
covering both appeals. 2680 RAF, Tab 7; 0056 RAF, Tab 6, Initial Decision (ID).
The administrative judge found that the Board had jurisdiction over the 15 -day
suspension and rever sed it on due process grounds, citing the agency’s failure to
provide notice of Board appeal rights. ID at 4 -5.2 Having reversed the
2 Although the agency did not raise the issue of timeliness, the administrative judge
found that the suspension appeal was timely filed because the appellant was diligent in
filing her appeal after she determined she could do so. ID at 5 n.7 (citing Beaude tte v.
Department of the Treasury , 100 M.S.P.R. 353 , ¶ 17 (2005)). We discern no error in
that finding, and the agency has not challenged it on review.
4
suspension on that basis, the administrative judge did not address the appellant’s
claim that the agency committed harmfu l procedural errors concerning that
action. ID at 4 n.5. As to the removal action, the administrative judge sustained
the charge of negligent performance of duties but found that three of the
specifications sustained by the deciding official, labeled as specifications
(2)(b)(1) through (3), amounted to double punishment because they concerned the
appellant’s performance during the detail, which was in turn the basis for the
agency’s decision to reinstate the suspension. ID at 6 -8. The administrative
judge further found that, in light of the deciding official’s testimony that he
would not have removed the appellant had she previously not been suspended, it
was appropriate to mitigate the removal penalty to a 14 -day suspension.
ID at 9-10.3 Accordingly, the administrative judge ordered the agency to:
(1) cancel the 15 -day suspension; (2) cancel the removal and replace it with a
14-day suspension without pay; and (3) provide appropriate back pay and
benefits. ID at 14-15. She further ordered the agency to provide interim relief in
accordance with 5 U.S.C. § 7701 (b)(2)(A) in the event either party filed a petition
for review. ID at 15 -16. The administrative judge indicated that the initial
decis ion would become the final decision of the Board on June 20, 2016, unless a
petition for review was filed by that date. ID at 17; see 5 C.F.R. § 1201.114 (e).
¶7 The appellant filed a timely petition for review on May 20, 2016.
Cargile v. Department of the Army , MSPB Docket No. CH -0752 -14-0056 -I-2,
Petition for Review (PFR) File, Tab 1. In her petition, the appellant contends
that, based on the agency’s table of penalties, the administrative judge should
have further mitigated the removal penalty to a 1 -day suspension. Id. at 4-5. In
its cross petition for review, filed on June 16, 2016, the agency contends that the
administrative judge erred in: (1) reversing the 15 -day suspension on due process
grounds; (2) not sustaining specifications (2)(b)(1) through (3); and (3) mitigating
3 The administrative judge made additional findings regarding the appellant’s
affirmative defenses. Infra n.5.
5
the removal penalty. PFR File, Tab 4. The parties dispute whether the agency
has complied with the interim relief order, and the app ellant has requested that
the Board dismiss the agency’s cross petition for failure to comply with that
order.4 PFR File, Tabs 6-7, 9.
ANALYSIS
Interim Relief
¶8 With exceptions not applicable here, an appellant who obtains relief in an
initial decision is entitled to the relief provided in the decision effective upon the
making of the decision and remaining in effect pending the outcome of the
petition for review. 5 U.S.C. § 7701 (b)(2)(A). If an agency files a petition or
cross petition for review and has not provided the interim relief ordered, the
appellant may request dismissal of the agency’s petition or cross petition.
5 C.F.R. § 1201.116 (d). In such circumstances, the Board has discretion to
dismiss the agency’s petition pursuant to 5 C.F.R. § 1201.116 (e).
¶9 Here, the record reflects that the agency reinstated the appellant effective
May 16, 2016 , the date of the initial decision. PFR File, Tab 7 at 11. The agency
asserts that it directed her to return to work on June 6, 2016, but that she was not
4 On October 19, 2018, the appellant filed a motion to dismiss the cross petition for
review as untimely filed with out a showing of good cause. PFR File, Tab 11. She
correctly observes that the agency failed to file its cross petition within 25 days of the
date of service of her petition for review, as required under 5 C.F.R. § 1201.114 (e), and
that the agency did not comply with the Clerk of the Board’s instruction to provide a
motion showing good cause for the filing delay, as required under 5 C.F.R.
§ 1201.114 (g). See PFR File, Tab 5. We note, however, that the agency did file its
cross petition before the June 20, 2016 finality date set forth in the initial decision. ID
at 17; see 5 C.F.R. § 1201.114 (e). Thus, had the appellant not already filed a petition
for review, the agency’s June 16, 2016 pleading would have been timely. Instead, the
swift filing of the appellant’s petition for review contracted the regulatory time period
for the agency to contest the initial decision. We find that it would be contrary to the
spirit of 5 C.F.R. § 1201.114 (e) to dismiss the agency’s cross petition under these
circumstances. While we do not excuse the agency’s failure to comply with the Clerk’s
instructions, we nonetheless exercise our discretion under 5 C.F.R. § 1201.114 (g) to
find good cause for the untimely filing.
6
available to work on that date, as she had to give notice to her current employer.
Id. at 4-5, 19 -20. As a result, the agency explains, the appellant was in paid
administrative leave status from May 16 through June 3, 2016, then placed in
leave without pay status beginning June 6, 2016, and eventually returned to pay
status on June 20, 2016, when she reported to work. Id. at 5, 12. However, the
appellant asserts that the agency did not pay her for the period from May 16
through June 6 or 10, 2016. PFR File, Tabs 6, 9. She also objects that she
received an interim rather than a permanent appointment. PFR File, Tab 9.
Based on our review of the evidence, we find that the agency has provided the
interim relief req uired under 5 U.S.C. § 7701 (b)(2)(A). Accordingly, we deny the
appellant’s motion to dismiss the agency’s cross petition.
15-Day Suspension
¶10 The administrative judge reversed the 15 -day suspensio n based on her
finding that the agency violated the appellant’s due process rights by failing to
inform her of her right to appeal the suspension with the Board. ID at 5. We
agree with the agency that this was an error. An agency’s failure to provide
information on Board appeal rights may excuse a late -filed Board appeal, but it
does not constitute a due process violation that would warrant reversal of the
action. Porter v. Department of Defense , 98 M.S.P.R. 461 , ¶ 36 (2005).
¶11 Moreover, we find that the agency did not otherwise deny the appellant due
process in imposing the 15 -day suspension. The record shows that the agency
prov ided the appellant written notice of the proposed suspension, setting forth the
specific reasons for the action and affording her 7 days to respond. 0056 IAF,
Tab 6, Subtab 4r. When the agency later amended the proposal notice to add an
additional charge , it explained in detail the basis for the new charge and provided
the appellant an additional 4 days in which to respond. Id., Subtab 4q. Although
the 4 -day response period was less than the 7 days required under 5 U.S.C.
§ 7513 (b)(1), it was not unreasonably short, and the deciding official considered
the supplemental written response the appellant provided the day after the
7
deadline. Id., Subtab 4p. We find, under these circumstances, that the agency
afforded the appellant due process because she received notice of the action
against her, an explanation of the reasons for the action, and an opportunity to
present her response. Pollak v. Department of the Treasury , 99 M.S.P.R. 187 , ¶ 9
(2005); see C leveland Board of Education v. Loudermill , 470 U.S. 532 , 546
(1985).
¶12 We further find that the agency did not deny the appellant due process in
reinstating the portion of her suspension that had been held in abeya nce pending
the completion of her detail. The appellant argued below that she was denied due
process because she was not afforded an opportunity to address the “charge” that
her performance on the detail was not adequate. 2680 IAF, Tab 33 at 8.
However, the requirement that the appellant successfully complete the detail to be
relieved of the unserved portion of the suspension did not constitute a new
charge, but rather a contingency, and the agency was not obliged to conduct a
new adverse action proceedi ng to impose that requirement. See Girani v. Federal
Aviation Administration , 924 F.2d 237 , 241 -42 (Fed. Cir. 1991); Walton v.
Department of the Navy , 24 M.S.P.R. 565 , 569 (1984). As discussed above, the
appellant did receive due process regarding the charges underlying the suspens ion
action as a whole. Moreover, to the extent the appellant may have had a due
process right to notice of the basis for the reinstatement of the suspension, the
agency provided the required notice by informing her that her performance on the
detail was c onsidered less than successful. 0056 IAF, Tab 6, Subtab 4k; see
Lizzio v. Department of the Army , 534 F.3d 1376 , 1383 -84 (Fed. Cir. 2008).
¶13 Because the administrative judge erroneously reversed the 15 -day
suspension on due process grounds, she did not address the merits of the agency’s
charges or the appellant’s claims of harmful procedural error.5 See ID at 4 n.5;
5 The administrative judge found, as to both the 15 -day suspension and the removal
action that the appellant did not establish her claims that the agency discriminated
against her on the bases of age and sex and engag ed in reprisal for her prior equal
8
2680 IAF, Tab 33. Whether the suspension should be sustained or reversed in
whole or in part on grounds other than due process will turn on findings of fact
and credibility determinations, which the administrative judge is in the best
position to make in the first instance. We the refore remand the appeal for further
adjudication.
Removal
¶14 In analyzing the charge of negligent performance of duties, the
administrative judge found that specifications (2)(b)(1) through (3) could not be
sustained because they concerned the appellant’s pe rformance while on detail,
and her allegedly unsatisfactory performance during that detail was the basis for
the agency’s decision to reinstate the unserved portion of the suspension.
ID at 6-7. We agree with the agency that the administrative judge erre d on this
point and that specifications (2)(b)(1) through (3) do not constitute impermissible
double punishment.
¶15 It is a well -established principle of civil service law that an agency may not
discipline an employee twice for the same misconduct that forme d the basis of a
prior disciplinary or adverse action when imposing a subsequent disciplinary or
adverse action. Frederick v. Department of Homeland Security , 122 M.S.P.R.
401, ¶ 6 (2015) . In this case, however, the 15 -day suspension action was based
entirely on incidents that occurred before the appellant’s detail. 0056 IAF, Tab 6,
Subtabs 4p -4r. Furthermore, while the unserved portion of the suspension was
reinstated based on the agen cy’s determination that her performance on the detail
was less than satisfactory, that determination was not itself a charge underlying
the suspension. See Girani , 924 F.2d at 241 -42; Walton , 24 M.S.P.R. at 569.
Thus, the prohibition against double punis hment does not apply to specifications
(2)(b)(1) and (3).
employment opportunity activity. ID at 11 -14. The appellant does not challenge these
findings on review, and we discern no error in the administrative judge’s determination.
9
¶16 As to the remaining specifications, the administrative judge found below
that the agency proved the specifications listed under paragraph (2)(a) and 2(c) of
the proposal notice, and the appellant has not challenged that finding on review.
ID at 7 -8; 0056 IAF, Tab 6, Subtab 4h. These specifications alone are sufficient
to sustain the charge. See Burroughs v. Department of the Army , 918 F.2d 170 ,
172 (Fed. Cir. 1990). Nonetheless, it is possible that the agency’s success or
failure in proving specifications (2)(b)(1) through (3) may be relevant to the
penalty analysis. See Payne v. U.S. Postal Service , 72 M.S.P.R. 646 , 651 (1996)
(holding that an agency’s failure to sustain all of its supporting specifications
may re quire, or contribute to, a finding that the agency’s penalty is not
reasonable). Accordingly, on remand, the administrative judge should make a
new finding on the merits of specifications (2)(b)(1) through (3), without
reference to the prohibition against double punishment.
¶17 Regarding the removal penalty, the administrative judge found that
mitigation was appropriate based on the deciding official’s testimony that he
would not have removed the appellant had she not previously served the 15 -day
suspension. ID at 10. We find the deciding official’s statement on this point was
clear and unambiguous. HT at 78 (testimony of the deciding official). However,
for the reasons discussed above, we are remanding the case for a new finding on
the merits of the 15 -day suspension. Hence, it is not yet clear whether and to
what extent the deciding official’s testimony may be applicable. For the same
reason, we cannot yet determine if the appellant is correct in her contention that
the misconduct underlying the removal action should be considered as a first
offense under the agency’s table of penalties.6 Moreover, as discussed above, it
6 In the notice of pr oposed removal and decision letter, the agency noted that the
appellant also had received an official written reprimand, dated September 1, 2011,
concerning similar performance issues. 0056 IAF, Tab 6, Subtabs 4h, 4u; 2680 IAF,
Tab 26. However, by its te rms, the written reprimand was to be retained in the
appellant’s official personnel folder “as a matter of temporary record for a period of
two years.” 0056 IAF, Tab 6, Subtab 4u. That 2 -year period expired before the
10
has yet to be determined whether specifications (2)(b)(1) through (3) of the
negligent performance of duties charge should be sustaine d. Accordingly, the
administrative judge should resolve these issues and conduct a new penalty
analysis on remand.
ORDER
¶18 For the reasons discussed above, we remand this case to the Central
Regional Office for further adjudication in accordance with this Remand Order.
On remand, the administrative judge should make new findings on the merits of
the 15 -day suspension and the appellant’s defense of harmful error as those
claims pertain to that suspension. In addition, the administrative judge should
make new findings on specifications (2)(b)(1) through (3) of the negligent
performance of duties charge and conduct a new penalty analysis as appropriate.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
appellant’s removal on September 27, 2013, and the Board has long held that an agency
may not rely on disciplinary actions that have expired by their terms or by law, rule, or
regulation. See, e.g. , Hyatt v. Department of the Army , 30 M.S.P.R. 256 , 260, aff’d ,
809 F.2d 791 (Fed. Cir. 1986) (Table). | CARGILE_DEBBIE_L_CH_0752_14_0056_I_2_REMAND_ORDER_1965892.pdf | 2022-10-03 | null | S | NP |
4,060 | https://www.mspb.gov/decisions/nonprecedential/POWELL_ADAM_C_CH_0714_18_0579_C_1_FINAL_ORDER_1965290.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ADAM C. POWELL,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-0714 -18-0579 -C-1
DATE: September 30, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Adam C. Powell , Marion, Illinois, pro se.
Grant T. Swinger , Hines, Illinois, for the agency.
Michael M. McFatridge , Esquire, Danville , Illinois, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the compliance initial
decision, which denied his petition to enforce a settlement agreement he entered
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
into with the agency. 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).
BACKGROUND
¶2 The parties entered into an agreement settling the appellant ’s appeal of his
removal on December 21, 2019 . Powell v. Department of Veterans Affairs ,
MSPB Docket No. CH-0714 -18-0579 -I-1, Initial Appeal File (IAF), Tab 1 3 at
5-7. The administrative judge entered the settlement agreement into the record
and issued an initial decision dismissing the appeal as settled on January 28,
2019. IAF, Tab 14, Initial Decision at 1 -3. The appellant subsequently filed a
petition for enforcement alleging that the agen cy breached a number of terms of
the agreement , and on April 16, 2019, the administrative judge issued a
compliance initial decision denying the appellant ’s petition for enforcement,
concluding that the agency established that it was in compliance with the terms of
the agreement and the appellant failed to present any evidence that his agreement
to settle the appeal was the product of misinformation. Compliance File , Tab 9,
Compliance Initial Decision ( CID) at 1 -5. The compliance initial decision
informed the appellant that the decision would become final on May 21, 2019,
unless he filed a petition for review by that date. CID at 5.
¶3 The appellant filed a petition for review over 2 years later, on February 14,
2022.2 Petition for Review (PFR) File, Tab 1. In his petition for review, he
challenges the merits of the underlying removal action, noting that “several cases
that pertain [to 38 U.S.C. § 714 ] have been overturned .” Id. at 3, 5. On
February 16, 2022, the Office of the Clerk of the Board notified the appellant
2 The appellant is a registered e -filer. IAF, Tab 1 at 2. Registration as an e -filer
constitutes consent to accept electronic service of documents issued by the Board.
5 C.F.R. § 1201.14 (e).
3
that, because he filed his petition for review more than 35 days following the
issuance of the April 16, 2019 compliance initial decision, it was untimely. PFR
File, Tab 2 at 1. The letter explained to the appellant that the Board ’s regulations
require a petition for review that appears untimely to be accompanied by a motion
to accept the filing as timely and/or to waive the time limit for good cause, set a
deadline for the app ellant to file such a motion , and provided a sample motion .
Id. at 1-3, 6-8. The appellant did not file the required motion concerning the
timeliness of his petition for review. The agency did not file a response to the
appellant ’s petition for review.
DISCUSSION OF ARGUME NTS ON REVIEW
¶4 Generally, a petition for review must be filed within 35 days after the date
of issuance of the initial decision or, if the petitioner shows that he received the
initial decision 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 Board may
waive the time limit for filing a petition for review upon a showing of good cau se
for the untimely filing. 5 C.F.R. § 1201.114 (g). To establish good cause, the
appellant must show that he exercised due diligence or ordinary prudence under
the particular circumsta nces of the case. Palermo v. Department of the Navy ,
120 M.S.P.R. 694 , ¶ 4 (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 a ffected his ability to comply with the time limit or of unavoidable
casualty or misfortune which similarly shows a causal relationship to his inability
to timely file his petition. Id.
¶5 Here, the administrative judge informed the appellant that the complia nce
initial decision would become final on May 21, 2019 , unless a petition for review
was filed by that date. CID at 5. The appellant filed his petition for review on
4
February 14, 2022 , more than 2 years and 8 months late, and failed to respond to
the letter from the Office of the Clerk of the Board instructing him to explain his
untimeliness. PFR File, Tab 1 at 1 , Tab 2 . An appellant who files a petition for
review late but does not file the required motion concerning the timeliness of his
petition for review has failed to show the due diligence and ordinary prudence
necessary for the Board to find good cause for his delay in filing. Galleno v.
Office of Personnel Management , 63 M.S.P.R. 440 , 442 (1994) (finding that an
appellant who filed her petition for review 4 months late, and failed to file the
required moti on on timeliness, failed to show good cause for waiver of the filing
deadline), aff’d, 48 F.3d 1236 (Fed. Cir. 1995) (Table); Goldberg v. Department
of Defense , 39 M.S.P.R. 515 , 518 (1989) (stating that in the absence of good
cause shown, the Board will not waive its timeliness requirements even if the
delay is minimal); Mejia v. Office of Personnel Management , 38 M.S.P.R. 472 ,
473 (1988) (finding that, where the appellant failed to respond to the Clerk ’s
notice concerning the timeliness of his petition for review and his un timely filing
did not include a motion for waiver of the time limit or an affidavit or statement
to establish good cause, the appellant ha d not demonstrated good cause for the
untimely filing). Because the appellant failed to file the required motion, as was
explained in the February 16, 2022 letter acknowledging his petition for review,
we find that he has failed to establish good cause for the waiver of the time limit.
Galleno , 63 M.S.P.R. at 442; Goldberg , 39 M.S.P.R. at 518; Mejia , 38 M.S.P.R.
at 473; 5 C.F.R. § 1201.114 (e).
¶6 Although he failed to respond to the Office of the Clerk of the Board’s
notice instructing him to demonstrate that his petition for review was timely filed
or that good cause existed for the late filing, PFR File, Tab 2, the appellant
appears to suggest in his petition for review that recent changes to the law have
called into question the validity of the removal action underlying his original
Board appeal , PFR File, Tab 1 at 3, 5. To the extent that the appellant is
5
attempting to challenge the validity of the agreement settling his Board appeal , he
may file a separate petitio n for review of the initial decision issued in Powell v.
Department of Veterans Affairs , MSPB Docket No. CH-0714 -18-0579 -I-1. We
note, however, that such a petition for review would likely be untimely and
require explanation for the delay in filing.
¶7 Accor dingly, 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 compliance initial decision remains the final
decision of the Board re garding the compliance appeal.
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for s eeking such
review and 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 no t 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 fina l decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot a dvise 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 f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availabl e at the court ’s website, www.cafc.uscourts.gov. Of particular
relevance is the court ’s “Guide for Pro Se Petitioners and Appellants, ” which is
contained within the court ’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
7
judicial review of this decision —including a disposi tion of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decisi on. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC ’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 2001 3
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.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Revi ew 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 circ uit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court ’s website, www.cafc.uscourts.gov. Of particular
relevance is the court ’s “Guide for Pro Se Petitioners and Appellants, ” which is
contained within the court ’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit , you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor war rants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | POWELL_ADAM_C_CH_0714_18_0579_C_1_FINAL_ORDER_1965290.pdf | 2022-09-30 | null | CH-0714 | NP |
4,061 | https://www.mspb.gov/decisions/nonprecedential/DOWIE_HEATHER_DC_3443_21_0672_I_1_FINAL_ORDER_1965349.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
HEATHER DOWIE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DC-3443 -21-0672 -I-1
DATE: September 30, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Heather Dowie , Washington, D.C., pro se.
Elizabeth Ghauri , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction this appeal from a letter of reprimand . On
petition for review, the appellant argues that the agency violated the applicable
collective bargaining agreement by not counseling her prior to issuing the letter
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
or allowing her to enter a rebuttal into her personnel file and raises an unspecified
prohibited personnel practices claim . Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings d uring 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 avail able 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 administrative judge found that the Board lacks jurisdiction over the
appellant’s letter of reprimand as an oth erwise appealable action. Initial Appeal
File (IAF), Tab 11, Initial Decision (ID) at 4. Accordingly, she concluded that
the Board does not have jurisdiction over any claims of discrimination, prohibited
personnel practices , or harmful error. ID at 4 -5. To the extent the appellant was
attempting to assert that the Board has jurisdiction over her claims as an
individual right of action (IRA) appeal , the administrative judge found that the
appellant failed to show that she exhausted her administrative rem edy before the
Office of Special Counsel (OSC), which is a jurisdictional prerequisite for an IRA
appeal. ID at 2-3; see Bishop v. Department of Agriculture , 2022 MSPB 28 , ¶ 9.
¶3 The appellant presents new argument and evidence on review. 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 mater ial evidence not
previously available despite the party’s due diligence. Clay v. Department of the
3
Army , 123 M.S.P.R. 245 , ¶ 6 (201 6). However, we have considered the
appellant’s arguments and evidence to the extent they impact the Board’s
jurisdiction, which is always before the Board and can be raised by the parties or
sua sponte by the Board at any time. Ney v. Department of Commerce ,
115 M.S.P.R. 204 , ¶ 7 (2010). As discussed below, w e find that the appellant has
not provide d a basis for granting revie w.
¶4 For the first time on review , the appellant submits a copy of her written
discovery requests to the agency, dated before the initial decision, which she
states the agency ignored. Petition for Review (PFR) File, Tab 1 at 3 -4, 98 -106.2
She argues that the administrative judge denied her “the ability to submit” any
resulting evidence. PFR File, Tab 1 at 3 -4. In an acknowledgment order, the
administrative judge advised the parties that they could engage in discovery and
of the deadlines for doing so . IAF, Tab 2 at 3 -4. She also generally indicated
that parties could request extensions “for good cause shown.” Id. at 5. Two
weeks later, t he administrative judge ordered the appellant to submit evidence and
argument showing the Board has jurisdiction over her appeal . IAF, Tab 5 at 2.
She further stated that if the appellant failed to respond or make a nonfrivolous
allegation of jurisdiction, the administrative judge would dismiss the appeal. Id.
¶5 An appellant is entitled to request discovery of rel evant materials to assist
her in meeting her burden of establishing Board jurisdiction. See Russo v.
Department of the Navy , 85 M.S.P .R. 12 , ¶ 8 (1999). The jurisdictional order and
the appellant’s response to that order predated the deadline for the appellant to
file a motion to compel . PFR File, Tab 1 at 98 -100; see 5 C.F.R.
2 The appellant submits with her petition for review a copy of the initial decision and
her response to the administrative judge’s jurisdictional order , including attachm ents.
PFR File, Tab 1 at 9 -97. Copies of the initial decision and the appellant’s response to
the order are already part of the record , and therefore the documents do not constitute
new evidence. IAF, Tabs 9, 11; see Moore v. Department of Trans portation ,
64 M.S.P.R. 298 , 301 (1994). Nonetheless, as discussed below, we have considered the
appellant’s jurisdictional response and the initial decision in connection with the
question of our jurisdiction over this appeal.
4
§ 1201.73 (d)(2 )-(3) (providing that a party must respond to a discovery request
within 20 days of service and that a motion to compel generally must be filed
within the following 10 days). The parties are expected to start and complete
discovery with minimal intervention from the Board. McClenning v. Department
of the Army , 2022 MSPB 3 , ¶ 19. Given the clear notice from the administrative
judge that the appeal might be dismissed for lack of jurisdiction and the
information in the acknowledgment order advising the parties of the requirement s
for requesting an exten sion, it was incumbent on the appellant to inform the
administrative judge that she wished to receive the agency’s discovery responses
before addressing the jurisdictional issue . See Szejner v. Office of Personnel
Management , 99 M.S.P.R. 275 , ¶ 5 (2005) (concluding that an appellant was
precluded from raising the agency’s failure to respond to discovery on review
when he failed to f ile a motion to compel below), aff’d , 167 F. App ’x 217 (Fed Cir.
2006) . Because the appellant did not seek an extension to complete discovery
below , we decline to consider this issue for the first time on review .
¶6 Further , even assuming the administrative judge erred in the procedures
leading up her dismissal of the appeal , her alleged error would not warrant
reversing the initial decision. An administrative judge’s procedural error is of no
legal consequence unless it is shown to have adversely affected a party’s
substantive rights . Karapinka v. Department of Energy , 6 M.S.P.R. 124 , 127
(1981). The appellant’s discovery requests sought information and documents
concerning her disagreement with the letter of reprimand, her allegations of
agency error in issuing the reprimand, and what appear to be her alleged
disclosures . PFR File, Tab 1 at 101 -06. The adminis trative judge found the
appellant failed to establish jurisdiction over her reprimand as an otherwise
appealable action. ID at 4. The administrative judge also found that the appellant
failed to establish IRA jurisdiction because she did not exhaust her OSC remedy.
ID at 2 -3. The appellant’s discovery did not concern these matters ; therefore, she
5
has failed to demonstrate how the administrative judge’s alleged error would
prevent dismissal of her appeal .
¶7 The appellant also seems to suggest that the administrative judge denied her
due process by not permitting her a hearing . PFR File, Tab 1 at 3 -4. We
disagree. A n appellant generally is entitled to a hearing on the jurisdictional
issue in an adverse action appeal when she makes allegations of f act which, if
proven, could establish a prima facie case that the Board has jurisdiction over the
matter in issue . Graves v. Department of Veterans Affairs , 123 M.S.P.R. 434 ,
¶ 22 (2016) . In an IRA appeal, an appellant is not entitled to a jurisdictional
hearing but is entitled to a hearing on the merits if, as relevant here, she proves
she exhauste d her OSC remedy. Id., ¶ 22. As the administrative judge correctly
found, a letter of reprimand is not an adverse action over which the Board has
chapter 75 jurisdiction. 5 U.S.C. § 7512 ; ID at 4-5. The administrative judge
also properly concluded that the appellant failed to establish Board jurisdiction
because she did not prove exhaustion of her OSC remedy. ID at 2 -3; IAF, Tab 1
at 4, Tab 9 at 9 ; PFR File, Tab 1 at 8.
¶8 Accordingly, the app ellant’s new evidence and argument on review do not
provide a basis to disturb the administrative judge’s findings, and we affirm the
initial decision.
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 770 3(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
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 no tice, the
Board cannot advise which option is most appropriate in any matter.
6
appropriate for your situation and the rights described below do not represent a
statemen t of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek 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 ha ve questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
7
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receive s this decision before
you do, then you must file with the district court no later 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 origi n, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
8
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your 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, 201 7. 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 C ircuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | DOWIE_HEATHER_DC_3443_21_0672_I_1_FINAL_ORDER_1965349.pdf | 2022-09-30 | null | DC-3443 | NP |
4,062 | https://www.mspb.gov/decisions/nonprecedential/KOUEMO_SYLVIANE_M_DA_1221_21_0425_W_1_FINAL_ORDER_1965383.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SYLVIANE M. KOUEMO,
Appellant,
v.
SMALL BUSINESS
ADMINISTRATION,
Agency.
DOCKET NUMBER
DA-1221 -21-0425 -W-1
DATE: September 30, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sylviane M. Kouemo , Washington, D.C., pro se.
Andrew Dylan Howell , Esquire, Bryan Upshur , Esquire, Claudine Landry ,
Esquire, and Jeanne Louise Heiser , Esquire, Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action in her whistleblower reprisal individual
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
right of action appeal . On petition for review, the appellant argues that t he
administrative judge made several erroneous findings of fact relating to the
alleged personnel actions at issue and incorrectly concluded that she failed to
prove that she made a protected disclosure under 5 U.S.C. § 2302 (b)(8) . Petition
for Review (PFR) File, Tab 1 at 7 -18. 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 r equired 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 clo sed. Title 5
of the 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 est ablished 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 argues on review that the administrative judge improperly denied her
motions to compel discovery and one of her witness requests. PFR File, Tab 1 at 17 -18.
Under the Board’s regulations, an administrative judge has the authority and discretion
to rule on these motions and requests. See 5 C.F.R. § 1201.41 (b)(4), (b)(8). Regarding
her two motions to compel, the administrative judge found that, among other things, the
appellant failed to include statements that she attempted in good faith to discuss the
motions and narrow the scope of disagreement with the agency. Initial Appeal File
(IAF), Tab 29 at 1 -2, Tab 41 at 5 -6. Regarding the witness request denial, the
administrative judge found that the proffered testimony did not appear relevant and
material to the issues before the Board or would be repetitive of the testimony of
approved witnesse s. IAF, Tab 41 at 7. The appellant’s cursory assertion on review that
the administrative judge’s rulings “were not consistent with required procedures,”
without referencing any specific procedures, does not demonstrate that the
administrative judge abuse d her discretion under 5 C.F.R. § 1201.41 (b)(4), (b)(8).
Accordingly, her arguments do not provide a basis to disturb the initial decision.
3
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time li mit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Boar d 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 for um.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact th at forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 avai lable at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in secu ring pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option appl ies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a clai m of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
5
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http:// www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request fo r review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
6
disposition of allegations of a prohibited personnel practice describe d in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for j udicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 j udicial review of certain
whistleblower claims by any court of 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 fo r judicial review of
MSPB decisions in certain 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, 2 017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | KOUEMO_SYLVIANE_M_DA_1221_21_0425_W_1_FINAL_ORDER_1965383.pdf | 2022-09-30 | null | DA-1221 | NP |
4,063 | https://www.mspb.gov/decisions/nonprecedential/SMITH_MARVIN_R_SF_0752_21_0090_I_1_FINAL_ORDER_1964842.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARVIN R. SMITH,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
SF-0752 -21-0090 -I-1
DATE: September 29, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shawn A. Luiz , Esquire, Honolulu, Hawaii, for the appellant.
John H. Stephenson, II , Esquire, Tripler Army Medical Center , Hawaii, for
the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L . Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision,
which affirmed his removal for conduct unbecoming a Police Officer . On review,
he reasserts that the agency failed to prove the charge and argues that the
administrative judge erred in concluding the penalty of removal was within the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
tolerable limits of reasonableness. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erron eous
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 appea l 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 assertion that he had 20 years of Federal
service and to recognize that the administrative judge erred in determining that
the deciding official did not consider the appellant’s prior discipline as
an aggravating factor in electing the penalty of removal , we AFFIRM the initial
decision.
¶2 On review, the appellant asserts that he had 20 years of service for which
the agency gave him “no credit” when determining the reasonableness of the
penalty under the relevant factors set forth in Douglas v. Veterans Administration ,
5 M.S.P.R. 280 , 305 -06 (1981) . Petition for Review (PFR) File, Tab 1 at 8. The
appellant alleged below that he had over 19 years of service with the Department
of Defense, including milita ry service as a combat Marine. Initial Appeal File
(IAF), Tab 1 at 14. An employee’s military service is relevant when analyzing
length of service under Douglas . Tartaglia v. Department of Veterans Affairs ,
858 F.3d 1405 , 1409 (Fed. Cir. 2017). It is unclear from the record exactly how
many years of military and civilian service the appellant had; ho wever, a
Standard Form 50 in the record reflects a service computation date in
3
September 2000 . IAF, Tab 1 at 34. Thus, it appears the appellant had 20 years of
service at the time of his September 2020 removal. IAF, Tab 5 at 77 -78.
¶3 In reviewing the deciding official ’s penalty assessment, the administrative
judge noted that the deciding official stated in his decision that he considered the
appellant’s service as a Police Officer for over 10 years and that he subsequently
testified that he considered th e appellant’s 16 years in law enforcement against
him because he was a seasoned officer who “should have known better.”
IAF, Tab 26, Initial Decision (ID) at 28 -29; IAF, Tab 5 at 77 . The administrative
judge correctly found error in the deciding official’s determination that the
appellant’s length of service was an aggravating factor. IAF, Tab 5 at 77;
ID at 28-29; see Shelly v. Department of the Treasury , 75 M.S.P.R. 677 , 684
(1997) ( finding that the agency erred in determining the appellant’ s 23 years of
service was an aggravating factor because a longtime em ployee “should have
known better ” and instead finding that 23 years of service with no prior discipline
was a factor supporting leniency ). She reweighed his 16 years of service,
considering it a mitigating factor but nonetheless sustaining the removal. I D at
28-29.
¶4 However, the administrative judge did not address the appellant’s claim
that, instead of 16 years of service , he had over 19 years of service . We modify
her decision to address that claim but nevertheless agree that removal is
appropriate . In Tartaglia , 858 F.3d at 1407, 1409 -10, the U.S. Court of Appeals
for the Federal Circuit held that the Board abused its discretion in sustaining the
penalty of removal whe n it miscalculated the appellant’s length of serv ice by not
crediting him for an additional 15 years of mi litary and civilian service and then
discounted other Douglas factors , including his lack of prior discipline and
outstanding work record , based on hi s purportedly short tenure of 4 years. Here,
there is no evidence that the administ rative judge discounted mitigating Douglas
factors when she only credited the appellant for 16 years of service, instead of 19
or 20 years of service. ID at 28. Also , unlike in Tartaglia , in which the
4
miscalculation resu lted in 15 years of lost credit, h ere the appellant only lost
credit for 4 years of service.
¶5 Further , it appears that the administrative judge erroneo usly found “no
evidence that the deciding official considered any particular disciplinary history,
much less that he treated it as aggravating .” ID at 28; IAF, Tab 5 at 77.
On review , the appellant states that he had “no serious prior incidents or
discipline,” other than a written warning. PFR File, Tab 1 at 9. This statement is
consistent with the administrative judge’s observati on that the deciding official
testified that he considered the appellant’s prior discipline and also referred to a
letter of reprimand. ID at 28. To the extent that the administrative judge found
that the deciding official did not “ consider [] any particu lar disciplinary history ”
because he did not specify that the prior discipline he considered was the
reprimand, we disagree. Consistent with his testimony, the record reflects that
the appellant was issued a prior suspension for conduct unbecoming a Polic e
Officer, which was reduced to a formal reprimand in 2019. IAF, Tab 14 at 5.
Further, the appellant’s acknowledgment that he had a prior written warning is
also consistent with this testimony. Therefore, we find that the deciding official
considered th e appellant’s prior reprimand to be an aggravating factor.
¶6 While we credit the appellant’s statement that he had 20 years of service
and assume for purposes of our analysis that he had no prior discipline , we still
find that removal is within the parame ters of reasonableness . Chavez v. Small
Business Administration , 121 M.S.P.R. 168 , ¶ 8 (2014) (explaining that when the
Board sustains all of the agency’s charges but finds errors in the agency’s
consideration of the relevant penalty factors, it will mitigate only the extent
necessary to bring the penalty within the parameters of reasonableness) .
The appellant’s misconduct was serious, and included slamming a patient into a
wall and violating the agency’s local security regulation by carrying a firearm
with live ammunition in the chamber , particularly in light of his position as a
Police Officer h eld to a higher standard . IAF, T ab 5 at 72 -73; see O’Lague v.
5
Department of Veterans Affairs , 123 M.S.P.R. 340 , ¶¶ 2, 18-21 (2016) (upholding
the appellant’s removal for falsification and sleeping on duty notwithstanding his
lack of prior discipline and explaining that law enforcement officers may be held
to a higher standard of conduct than other Federal employees) aff’d per curiam ,
698 F . App’x 1034 (Fed. Cir. 2017); Tate v. Department of Defense , 57 M.S.P.R.
180, 189 -90 (1993) (affirming a removal for absence without leave and
threatening to inflict bodily harm upon a supervisor despite such mitigating
factors as 24 years of service and the lack of prior discipline); MacCormac v.
Department of the Air Force , 26 M.S.P.R. 611 , 612, 614 (1985) (upholding the
appellant’s removal for intimidating conduct toward a subordinate and violating
agency security regulations concerning possession of weapons); MacDonald v.
Department of the Navy , 4 M.S.P.R. 403 , 404 -05 (1980) (sustaining the removal
of a police officer for carrying a loaded firearm in a paper ba g in an agency
installation while off -duty). Thus, any miscalculation by the agency and the
administrative judge in the appellant’s length of service did not prejudice his
substantive rights because even after properly weighing that factor and crediting
the appellant’s 20 years of service , we find that removal was reasonable. 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
provi des no basis for reversal of an initial decision). Accordingly, we affirm the
administrative judge’s finding sustain ing the appellant’s removal for conduct
unbecoming a Police Officer.
NOTICE OF APPEAL RIG HTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
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
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appr opriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on 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 immediat ely 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 th ree main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
7
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscou rts.gov/Court_Locator/CourtWebsites.aspx .
8
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for revi ew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhanc ement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in s ection
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
9
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 judicia l review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information a bout the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practic e, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono repre sentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SMITH_MARVIN_R_SF_0752_21_0090_I_1_FINAL_ORDER_1964842.pdf | 2022-09-29 | null | SF-0752 | NP |
4,064 | https://www.mspb.gov/decisions/nonprecedential/ELSAYED_ASHRAF_A_AT_0752_21_0114_I_2_FINAL_ORDER_1965067.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ASHRAF A. ELSAYED,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
AT-0752 -21-0114 -I-2
DATE: September 29, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ashraf A. Elsayed , Jacksonville, Florida, pro se.
Kelley Thomas and Matthew McCoy , Millington, Tennessee, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal from Federal service . Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous find ings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due dilig ence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to find that the agency did not commit harmful procedural error , we
AFFIRM the initial decision.
¶2 On review, the appellant reasserts many of the same arguments that he
raised before the administrative judge. In addition, he asserts the following
arguments: (1) the administrative judge erred in cancelling the hearing as a
sanction ; (2) the agen cy’s denial of his request for leave without p ay (LWOP)
violated agency policy and policy set forth by the Office of Personnel
Management (OPM); (3) his second -level supervisor retaliated against him for
filing an equal e mployment opportunity complaint; (4) he did not receive hard
copies of the notice of p roposed removal or the decision; and (5) the agency did
not allow him to present an oral reply. Petition for Review ( PFR ) File, Tab 1
at 5-6. The Board’s regulations st ate that an appellant may not raise a new claim
after the prehearing conferen ce without good cause shown. 5 C.F.R.
§ 1201.24 (b). There is no evidence t hat the appellant raised c laims 3 through 5
prior to, or at, the prehearing conference in this appeal. Elsayed v. Department of
the Army , MSPB Docket No. AT -0752 -21-0114 -I-2, Refiled Appeal File (RAF),
Tab 26. We therefore decl ine to consider them on review. For the reasons stated
herei n, we find the appellant’s remaining arguments unavailing.
3
¶3 An administrative judge may impose sanctions as necessary to serve the
ends of justice , which includes the right to sanction a party for failure to comply
with an order . Heckman v. Department of the Interior , 106 M.S.P.R. 210 , ¶ 8
(2007); 5 C.F.R. § 1201.43 . An administrative judge may cancel a requested
hearing for conduct that is prejudicial to the adminis tration of justice. 5 C.F.R.
§ 1201.43 (e). Absent a sh owing of abuse of discretion, the Board will not reverse
an administrative judge’s determination regarding sanctions. See Montgomery v.
Department of the Army , 80 M.S.P.R. 435 , ¶ 17 (1998). Here, the appellant failed
to respond to the agency’s written discovery requests. RAF, Tab 10 at 1. The
administrative judge ordered him to file responses , and after he failed to comply,
the administrative judge sanctioned the appellant by prohibiting him from
introducing certain evidence into the record . RAF, Tab 10 at 1, Tab 21 at 1. In
the same order, the administrative judge instructed the appellant to appear for a
telephonic deposition within 10 days , noting that he had failed to appear for
multiple scheduled depositions . RAF, Tab 21 at 1. The appellant failed to
comply with the order , and the administrative judge sanctioned the appellant by
cancelling his req uested hearing . RAF, Tab 2 6 at 1 -2. The administrative judge
considered the appellant’s assertion that he could have appeared for the
deposition if the agency had provided him with a prepaid telecommunications
card and found it to be unpersuasive given the appellant’ s failure to raise this
request prior to the scheduled deposition . RAF, Tab 23 at 15 -18, 24 -32, Tab 26
at 1-2. We agree . The appellant was on notice that his conduct could result in
sanctions, and we therefore find that the administrative judge did not a buse his
discretion in cancelling the hearing. E.g., RAF, Tab 10 at 1, Tab 15 at 4, Tab 19
at 4, Tab 21 at 1-2, Tab 23 at 4; see Heckman , 106 M.S.P.R. 210 , ¶¶ 8-12 (finding
that the administrative judge did not abuse her discretion in cancel ling an
appellant’s hearing after she failed to comply with three , separate orders despite
being warned of possible sanctions).
4
¶4 Next, the appellant asserts that the agency violated its own policy when his
request for LWOP was denied by his second -level supervisor instead of the
Director . PFR File, Tab 1 at 5, 11 -12. Although unclear, the appellant may have
attempted to raise this argument before the administrative judge. E.g., Elsayed v.
Department of the Army , MSPB Docket No. AT -0752 -21-0114 -I-1, Initial Appeal
File (IAF), Tab 1 at 4 . The appellant has not filed a copy of an agency policy
requiring the Director to approve or di sapprove an employee’ s request for LWOP.
Even assuming the agency had such a policy , and to the exten t the appellant
claims that the agency committed harmful procedural error, he has not shown that
the Director likely would have approved the appellant’s r equest. See Stephen v.
Department of the Air Force , 47 M.S.P.R. 672 , 681, 685 (1991) (explaining that
the Board will reverse an action fo r harmful error if the appellant shows that the
procedural error likely would have caused the agency to reach a different
conclusion in the absence or cure of the error) ; 5 C.F.R. § 1201.4 (r). The
appellant also asserts, without explanation, that the agency’s denial of his request
for LWOP violated “ OPM rules of leave/emergency. ” PFR File, Tab 1 at 5; RAF,
Tab 18 at 16. The appellant has not provide d a copy of the policy he is
referencing , and he has not explain ed how he b elieves the agency violated OPM’s
policy. See Tines v. Department of the Air Force , 56 M.S.P.R. 90 , 92 (1992)
(stating that a petition for review must contain sufficient specificity to enable the
Board to ascertain whether there is a serious evidentiary challenge justifying a
complete review of the record ). Accordi ngly, we modify the initial decision to
find that the agency did not commit harmful procedural error regarding alleged
violations of agency and OPM policy .
¶5 Finally, we address the documents attached to the appellant’s petition for
review. The Board gener ally 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 Servic e, 3 M.S.P.R. 211 , 213 -14 (1980).
5
Many of the documents submitted with the appellant’s petition for review were
submitted to the administrative j udge, and thus, they are not new. See Meier v.
Department of the Interior , 3 M.S.P.R. 247 , 256 (1980). To the extent the
appellant has filed any do cuments that were not filed before the administrative
judge, he has not explained why the documents were unavailable prior to the
close of the record, an d thus, we do not consider them.
¶6 We have considered the appellant’s remaining arguments and find they do
not warrant disturbing the findings in the initial decision. We therefore deny the
petition for review and affirm the initial decision.
NOTICE OF APPEAL RIG HTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 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 bel ow do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filin g time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to yo ur particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is mos t appropriate in any matter.
6
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
7
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017) . If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for rev iew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
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
Enhan cement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice descri bed in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law b y the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional info rmation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules o f Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ELSAYED_ASHRAF_A_AT_0752_21_0114_I_2_FINAL_ORDER_1965067.pdf | 2022-09-29 | null | AT-0752 | NP |
4,065 | https://www.mspb.gov/decisions/nonprecedential/MCCORD_MICHAEL_CB_1208_22_0017_U_2_ORDER_ON_STAY_EXTENSION_REQUEST_1964434.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SPECIAL COUNSEL
EX REL. MICHAEL MCCO RD,
Petitioner,
v.
FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMIS SON,
Agency.
DOCKET NUMBER
CB-1208 -22-0017 -U-2
DATE: September 28, 2022
THIS STAY ORDER IS N ONPRECEDENTIAL1
Elizabeth Q. McMurray , Esquire and Shoshana S. Elon , Esquire,
Washington, D.C., for the petitioner.
Ariel E. Solomon , Esquire, Washington, D.C., for the relator .
Pollyanna Hampton , Esquire, Washington , D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
ORDER ON STAY EXTENSION REQUEST
¶1 Pursuant to 5 U.S.C. § 1214 (b)(1)( B), the Office of Special Counsel (OSC)
requests a 60-day extension of the previously granted stay of the Federal Mine
Safety and Health Review Commission’s (the agency’s) removal while OSC
completes its investigation and legal review of the matter and determines whether
to seek corrective action. For the reasons discussed below, OSC’s request is
GRANTED.
BACKGROUND
¶2 On August 1 5, 2022, OSC requested a 45 -day initial stay of the re moval of
Mr. McCord based on misconduct charges. Special Counsel ex rel. Michael
McCord v. Federal Mine Safety and Health Review Commission , MSPB Docket
No. CB -1208-22-0017 -U-1, Stay Request File, Tab 1. In its initial stay request,
OSC argued that it ha d reasonable grounds to believe that the agency’s action was
in retaliation for Mr. McCord’s activity that was protected by 5 U.S.C.
§§ 2302 (b)(8) and (b)(9). Id. On August 18, 2022, OSC’s initia l stay request was
granted through and including October 1, 2022. Special Counsel ex rel. Michael
McCord v. Federal Mine Safety and Health Review Commission , MSPB Docket
No. CB -1208 -22-0017 -U-1, Order on Stay Request (Aug. 18, 2022) .
¶3 On September 14, 20 22, OSC timely filed a request to extend the stay for an
additional 60 days. Special Counsel ex rel. Michael McCord v. Federal Mine
Safety and Health Review Commission , MSPB Docket No. CB -1208-22-0017 -
U-2, Stay Request File (U -2 SRF), Tab 1. The agency has not file d a response.
ANALYSIS
¶4 A stay granted pursuant to 5 U.S.C. § 1214 (b)(1) is issued to maintain the
status quo ante while OSC and the agency involved resolve the disputed matter.
Special Counsel v. Department of Transportation , 74 M.S.P.R. 155, 157 (1997).
The purpose of the stay is to minimize the consequen ces of an alleged prohibited
3
personnel practice. Id. In evaluating a request for an extension of a stay, the
Board will review the record in the light most favorable to OSC and will grant a
stay extension request if OSC’s prohibited personnel practice cl aim is not clearly
unreasonable. Id. at 158. The Board may grant the extension for any period that
it considers appropriate. 5 U.S.C. § 1214 (b)(1)(B); Special Counsel ex rel.
Waddell v. Departme nt of Justice , 105 M.S.P.R. 208 , ¶ 3 (2007).
¶5 In its stay extension request, OSC asserts that it continues to have
reasonable grou nds to believe that Mr. McCord’s removal constitutes prohibited
personnel practice s pursuant to 5 U.S.C. §§ 2302 (b)(8) and (b)(9) , and it states
that its investigation is ongoing. U -2 SRF, Tab 1 a t 4. OSC states that it has
“conducted upwards of two dozen witness interviews and reviewed voluminous
documentary evidence ,” including agency records provided in response to its
request for records and information. Id. Since the Board ordered the initi al stay,
OSC has received additional records from the agency and is seeking to obtain
from the agency a password for “what appears to be a highly -relevant
password -protected document.” Id. OSC requests additional time to complete its
review of the inform ation provided, schedule and conduct any additional
necessary witness interviews, issue any additional requests for information, and
decide on further action depending on how the evidentiary record develops. Id.
¶6 Viewing the record in the light most favora ble to OSC and considering the
fact that the evidentiary record supporting OSC’s initial stay request does not
appear to have changed materially since the initial stay was granted, an extension
of the stay is not clearly unreasonable to allow OSC time to c ontinue its
investigation, attempt a resolution of this matter and, if necessary, pursue
corrective action before the Board. Special Counsel v. Small Business
Administration , 73 M.S.P.R. 12 , 13-14 (1997).
¶7 Finally, a separate determination must be made on the length of the
requested stay. Waddell , 105 M.S.P.R. 208 , ¶ 5. It is the intent of Congress that
stays not be extended for prolonged periods of time. Special Counsel v.
4
Departme nt of the Treasury , 71 M.S.P.R. 419 , 421 (1996). Moreover, the Board
is obligated to press OSC to present corrective action case s in a timely manner.
Id. at 422. In light of these factors, we find that a 60 -day extension of the stay is
warranted, and we therefore grant OSC’s request.
ORDER
¶8 Pursuant to 5 U.S.C. § 1214 (b)(1 )(B), a 60 -day extension of the stay is
hereby GRANTED, and it is ORDERED as follows :
(1) The stay issued on August 18, 2022, is extended through and
including November 30 , 2022, on the terms and conditions set forth
in that Order;
(2) The agency shall not effect any changes in Mr. McCord’s duties or
responsibilities that are inconsistent with his salary or grade level, or
impose upon him any requirement which is not required of other
employees of comparable position, salary, or grade level;
(3) Within 5 working days of this Order, the agency shall submit
evidence to the Clerk of the Board showing that it has complied with
this Order;
(4) Any request for a further extension of this stay pursuant to 5 U.S.C.
§ 1214 (b)(1)(B), as amended by Pub. L. No. 115 -42,2 and 5 C.F.R.
§ 1201.136 (b) must be received by the Clerk of the Board and the
agency, together with any further evidentiary support, on or before
November 15, 2022 ; and
2 As passed by the House of Representatives on May 25, 2017, passed by the Senate on
June 14, 2017, and signed into law on June 27, 2017.
5
(5) Any comments on such a request that the agency wants the Board to
consider pursuant to 5 U.S.C. § 1214 (b)(1)(C) and 5 C.F.R.
§ 1201.136 (b) must be received by the Clerk of the Board on or
before November 22, 2022 .
FOR THE BOARD:
Wash ington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MCCORD_MICHAEL_CB_1208_22_0017_U_2_ORDER_ON_STAY_EXTENSION_REQUEST_1964434.pdf | 2022-09-28 | null | CB | NP |
4,066 | https://www.mspb.gov/decisions/nonprecedential/ERVIN_MICHAEL_W_SF_0752_17_0722_X_1_SHOW_CAUSE_ORDER_1964595.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MICHAEL W. ERVIN,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
SF-0752 -17-0722 -X-1
DATE: September 28, 2022
THIS ORDER IS NONPRECEDENTIAL1
Mary DiGioia , Bellflower, California, for the appellant.
Catherine V. Meek , Esquire, Long Beach, California, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
ORDER TO SHOW CAUSE
¶1 On September 2 5, 2017, the appellant appealed his removal from the
position of Manager, Customer Service, to the Board . Ervin v. United States
Postal Service , MSPB Docket No. SF -0752 -17-0722 -I-1, Initial Appeal File
(IAF), Tab 1. On December 3, 2018 , the administrative judge issued an 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 dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
decision mitigating the appellant’s removal to a demotion to the position of
Supervisor, Customer Service. IAF, Tab 30, Initial Decision (ID) at 14. The
administrative judge ordered the agency to cancel the appellant’s removal an d
substitute in its place a demotion to the position of Supervisor, Customer Service;
and to pay the appellant the appropriate amount of back pay, with interest, as well
as to adjust the appellant’s benefits with appropriate credits and deductions. ID
at 14-15. That initial decision became the final decision of the Board on
January 7, 2019 , after neither party petitioned the full Board for review. ID
at 16-17.
¶2 On March 18, 2019, the appellant filed a petition for enforcement of the
Board’s order, alleging that the agency had not yet returned him to work . Ervin
v. United States Postal Service , MSPB Docket No. SF -0752 -17-0722 -C-1,
Compliance File ( CF), Tab 1 at 3. On May 10, 2019, the administrative judge
issued a compliance initial decision granting the petition for enforcement because
the agency failed to demonstrate that it cancelled the appellant’s remova l; placed
him in a Supervisor position ; or paid him back pay, interest, an d benefits. CF,
Tab 5, Compliance Initial Decision at 4. The administrative judge again ordered
the agency to : (1) cancel the removal and substitute in its place a demotion to the
position of Supervisor, Customer Service; (2) pay the appellant the correct
amount of back pay, interest, and benefits; and (3) inform the Board in writing of
all actions taken to comply with the Board’s order and the date on which it
believes it has fully complied.
¶3 On July 9, 2019 , the agency filed a statement of compliance pursuant to
5 C.F.R. §§ 1201.183 (a) and 120 1.183(a)(6)(ii). Ervin v. United States Postal
Service , MSPB Docket No. SF -0752 -17-0722 -X-1, Compliance Referral File
(CRF), Tab 3 . The agency stated in its response that it believed there was no need
to cancel the appellant’s removal because the removal was never actually
effectuated due to the appellant’s resignation. CRF, Tab 3 at 4. The agency
further stated that it reactivated the appellant’s employment and placed him into a
3
position as Supervisor, Customer Service, at the Pico Rivera Post Office, w here
he reported for the first time on June 24, 2019. Id. The agency finally stated
that, for the agency to be able to complete the back pay requirement, the appellant
needed to complete the agency’s back pay forms addressing outside employment
and other sources of income. Id. at 5.
¶4 On July 22, 2019, the appellant responded to the agency’s proof of
compliance. CRF, Tab 4. The appellant asserted that his new assignment was
farther from his home than his original position, despite similar vacant positions
existing in his original facility. Id. at 11. The appellant further stated that he
submit ted the requisite back pay forms to the agency on July 1, 2019. Id.
¶5 On June 19, 2020, the Clerk of the Board issued an order stating that further
evidence from the agency was required before the Board could make a
determination on compliance. CRF, Tab 5 at 2 -3. The Clerk of the Board noted
that, as of the date of the order, the agency had not yet submitted any evidence
demonstrating that all back pay funds have been paid to the appellant, provided
any explanation as to how it chose the appellant’s new position, or stated whether
it cancelled the Standard Form ( SF) 50 reflecting the appella nt’s retirement. Id.
The Clerk of the Board directed the agency to inform the Board whether all back
pay funds had been paid to the appellant, and if the agency claimed that the back
pay funds had been paid, the agency’s submission was required to include full
details of the back pay calculations and a narrative summary of the payments. Id.
The Clerk of the Board further directed the agency to state whether it ha d
cancelled the petitioner’s retirement SF -50, and also inform the Board regarding
how it chose the appellant’s new position, including the location, and explain why
the appellant was not returned to his original work location. Id.
¶6 On April 23, 2021, the Clerk of the Board issued another order due to the
agency’s failure to respond to th e June 19, 2020 Order. CRF, Tab 6. The
April 23 Order repeated the June 19, 2020 directive to the agency , and also
warned the agency that failure to submit the required information may lead to the
4
issuance of sanctions against the responsible agency offi cial pursuant to 5 U.S.C.
§ 1204 (e)(2)(A) and 5 C.F.R. § 1201.183 (c). Id. at 2.
¶7 Because the agency has still not filed any response to the June 19, 2020 and
April 23, 2021 Orders, the Board hereby ORDERS the agency to submit evidence
that it has fully complied with the Board’s December 3, 2018 Order. This
evidence must include, but is not limited to, the information requested in the
June 19, 2020 and April 23, 2021 Orders. Additionally, the Board also ORDERS
Cynthia Garcia, the agency management official identified as responsible for
ensuring the agency’s compliance, to SHOW CAUSE why the Board sho uld not
impose sanctions for the agency’s noncompliance in this case, including an order
that Ms. Garcia not receive salary for the period during which the agency remains
in noncompliance.2 The agency and Ms. Garcia shall submit their responses
within 30 days of the date of this Order.
¶8 Within 21 days of the agency’s submissions, the appellant shall file a
response. Failure to do so may cause the Board to assume he is satisfied and
dismiss the petition for enforcement.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
2 Because the agency did not provide proper contact information for Ms. Garcia, the
agency is hereby O RDERED to serve a copy of this O rder upon Ms. Garcia. In the
event that Ms. Garcia is no longer employed by the ag ency, the agency is hereby
ORDERED to identify the agency official that has replaced Ms. Garcia as ensuring
agency compliance in this matter, and serve a copy of this Order on that replacement
official. Further, the identified replacement must fulfill all obligations of Ms. Garcia
under this Order. | ERVIN_MICHAEL_W_SF_0752_17_0722_X_1_SHOW_CAUSE_ORDER_1964595.pdf | 2022-09-28 | null | SF-0752 | NP |
4,067 | https://www.mspb.gov/decisions/nonprecedential/PATILLO_KELVIN_SF_0752_22_0151_I_1_FINAL_ORDER_1963961.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MR. KELVIN PATILLO,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
SF-0752 -22-0151 -I-1
DATE: September 27, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Justin Prato , Esquire, San Diego, California, for the appellant.
Harold G. Murray , San Diego, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 After issuance of the June 3, 2022 initial decision in this appeal, the parties
notified the Board that they had settled the appeal. Petition for Review (PFR)
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
File, Tab 1; Initial Appeal File, Tab 24 , Initial Decision .2 For the reasons set
forth below, w e DISMISS the appeal as settled.
¶2 The parties submitted a document entitled “SETTLEMENT AGREEMENT”
signed and dated by the appellant on June 29, 2022, and by the agency on July 2,
2022. PFR File, Tab 1 at 13 . The document provides, among other things, for
the dismissal of the appeal. Id. at 7. Before dismissing a matter as settled, the
Board must decide whether the parties have entered into a settlement agreement,
whether they understand its terms, and whet her they intend to have the agreement
entered into the record for enforcement by the Board. See Mahoney v. U.S.
Postal Service , 37 M.S.P .R. 146 , 149 (1988). In addition, before accepting a
settlement agreement into the record for enforcement purposes, the Board must
determine whether the agreement is lawful on its face and whether the parties
freely entered into it. See Massey v. Office of Personnel Management ,
91 M.S.P.R. 289 , ¶ 4 (2002), overruled on other grounds by Delorme v.
Department of the Interior , 124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the
Board may enforce settlement agreements that have been entered into the recor d,
independent of any prior finding of Board jurisdiction over the underlying matter
being settled).
¶3 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforcement by the Board. PFR File, Tab 1 at 11 . Accordingly, we find that
dismissing the appeal with prejudice to refiling (i.e., the parties normally may
not refile this appeal) is appropriate under these circumstances. In addition, we
find that the agreement is lawful on its face and freely entered into, and we
accept the settlement agreement into the record for enforcement purposes.
2 As the initial decision had already been issued and become final by the time the
parties notified the Board of their settlement agreement, the submission was considered
and docketed as a petition f or review of the initial decision. PFR File, Tabs 1 -2.
3
¶4 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this a ppeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, th e nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available ap peal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriat e one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to th e U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. C ourt of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for M erit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involvi ng a claim of
discrimination . This option applies to you only if you have claimed that you
5
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of pre payment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issu es. 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. C ourt of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circui t
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitio ners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our web site at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | PATILLO_KELVIN_SF_0752_22_0151_I_1_FINAL_ORDER_1963961.pdf | 2022-09-27 | null | SF-0752 | NP |
4,068 | https://www.mspb.gov/decisions/nonprecedential/SHERMER_BRADLEY_W_PH_3443_18_0003_I_1_FINAL_ORDER_1963975.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BRADLEY W. SHERMER,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
PH-3443 -18-0003 -I-1
DATE: September 27, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kevin I. Lovitz , Esquire, Philadelphia, Pennsylvania, for the appellant.
Irwin Ansher , Esquire, Washington, D.C., D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the November 7, 2017 initial
decision in this appeal. Petition for Review (PFR) File, Tab 1. For the reasons
set forth below, we DISMISS the appeal as settled.
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the parties on
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
November 20, 2018. PFR File, Tab 7. The document provides, among other
things, that the appellant agreed to w ithdraw the above -captioned appeal in
exchange for the promises made by the agency . Id. at 7.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146 ,
149 (1988). In addition, before accepting a settlement agreement into the record
for enforcement purposes, the Board must determine whether the agreement is
lawful on its face and whether the parties freely entered into it . See Massey v.
Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) , overruled on
other grounds by Delorme v. Department of the Interior , 124 M.S.P.R. 123 ,
¶¶ 11-21 (2017) ( holding that the Board may enforce settlement agreements that
have been entered into the record, independent of any prior finding of Board
jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into t he record
for enforceme nt by the Board. PFR File, Tab 7 . In addition, we find that the
agreement is lawful on its face and that the parties freely entered into it. Id.
¶5 Accordingly, we find that dismissing the appeal “with prejudice to refiling”
(i.e., the parties normally may not refile this appeal) is appropriate under these
circumstances, and we accept the settlement agreement into the record for
enforcement purposes. This is the final decision of the Merit Systems Protection
Board in this appeal. Title 5 of the Code of Federal Regulations,
section 1201.113 ( 5 C.F.R. § 1201.113 ).
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
3
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summ ary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which case s fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular foru m is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S .
Court of Appeals for the Federal Circuit, which must be received by the court
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
4
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petiti on for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
5
you do, then you must file with the district court no later than 30 calendar da ys
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed throu gh the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your di scrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washin gton, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW1 2G
Washington, D.C. 20507
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 chall enge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review ei ther with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Fed eral Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SHERMER_BRADLEY_W_PH_3443_18_0003_I_1_FINAL_ORDER_1963975.pdf | 2022-09-27 | null | PH-3443 | NP |
4,069 | https://www.mspb.gov/decisions/nonprecedential/THOMPSON_RODONDA_DC_0752_18_0132_I_1_FINAL_ORDER_1963996.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RODONDA THOMPSON,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
DC-0752 -18-0132 -I-1
DATE: September 27, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
J. Cathryne Watson , Esquire, Washington, D.C., for the appellant.
Robin Terry , Esquire, and Terri Zall , Esquire, Washington , D.C., for the
agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for r eview of the March 30, 2018 initial
decision in this appeal. Initial Appeal File, Tab 18, Initial Decision; Petition for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
requ ired to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Review (PFR) File, Tab 1. For the reasons set forth below, we DISMISS the
appeal as settled.
¶2 After the filing of the petition for rev iew, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the agency on
March 25, 2020, and by the appellant on March 30, 2020. PFR File, Tab 4. The
document provides, among other things, for the withdrawal of the
above -captioned appeal. Id. at 4.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record f or
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11-21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdict ion over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforcement by the Board. PFR File, Tab 4. In a ddition, we find that the
agreement is lawful on its face and that the parties freely entered into it. Id.
Accordingly, we find that dismissal of the appeal “with prejudice to refiling”
(i.e., the parties normally may not refile this appeal) is appropria te under these
circumstances, and we accept the settlement agreement into the record for
enforcement purposes.
3
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Bo ard 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 se ttlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable t ime
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advis e which option is most appropriate in any matter.
4
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a pe tition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
5
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar da ys
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision . 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 2 0013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washingto n, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the B oard’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
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 A ct, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | THOMPSON_RODONDA_DC_0752_18_0132_I_1_FINAL_ORDER_1963996.pdf | 2022-09-27 | null | DC-0752 | NP |
4,070 | https://www.mspb.gov/decisions/nonprecedential/MACY_VALORIE_J_PH_1221_18_0335_W_1_FINAL_ORDER_1964028.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
VALORIE J. MACY,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
PH-1221 -18-0335 -W-1
DATE: September 27, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Valorie J. Macy , Granby, Massachusetts, pro se.
Helen E. Moore , Esquire, Boston, Massachusetts, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the initial decision in this appeal.
Petition for Review (PFR) File, Tab 1. For the reasons set forth below, we
DISMISS the appeal as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board's case law. See 5 C.F.R. § 1201.117 (c).
2
¶2 After the filing of the petition for review, the agency submitted a motion to
dismiss the appeal on the basis of a settlement agreement entered into by the
parties, effective August 26, 2021. PFR File, Tab 8. The settlement agreement
provides, among other things, that the appellant would withdraw with prejudice
her pending appeal in this case and in three other cases: the joined appeals in
Macy v. Department of Homeland Security , MSPB Docket No. PH -1221 -21-
0229 -W-1, and Macy v. Department of Homeland Security , MSPB Docket
No. PH-752S -21-0211 -I-1, and se parately, Macy v. Department of Homeland
Security , MSPB Docket No. PH -1221 -17-0324 -W-1. Id. at 4-5. The settlement
agreement required that the appellant move to dismiss or withdraw these cases
within 7 business days of the effective date of the settlemen t, i.e., by
September 8, 2021. Id.
¶3 The agency’s motion to dismiss noted that although the appellant filed a
motion to dismiss her pending appeal in MSPB Docket N o. PH -1221 -21-0229 -
W-1,2 she did not move to withdraw the instant case or MSPB Docket
No. PH-1221 -17-0324 -W-1 as required by the agreement. The agency further
stated that when it reminded the appellant to file the motions required in these
cases, she refused to do so until the agency had paid her the amount agreed upon
in the settlement agreement (although the requirement that she file the motions
was not dependent on the agency’s payment). Finally, the agency stated that
when the appellant still had not filed the required motions even after payment
had been made, the agency filed the motions and the settlement agreement in lieu
of the appellant. Id. at 12-13.
2 The administrative judge accepted the settlement agreement into the record and
dismissed this appeal and MSPB Docket N o. PH -752S -21-0211 -I-1 with prejudice on
September 2, 2021. Macy v. Department of Homeland Security , MSPB Docket
No. PH-1221 -21-0229 -W-1, Tab 58 , Initial Decision; Macy v. Department of Homeland
Security , MSPB Docket No. PH-752S -21-0211 -I-1, Tab 30, Initial Decision.
3
¶4 The appellant did not respond to the agency’s motion to dismiss. However,
on November 8, 2021, she filed a motion to withdraw her appeal pursuant to the
settlement agreement. PFR File, Ta b 9.
¶5 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement , whether they understand its
terms , and whether they intend to have the agreement entered into the record for
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 have freely entered into
it. See Massey v. Office of Personnel Mana gement , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of Interior , 124 M.S.P.R.
123, ¶¶ 11-21 (2017) (holding that the Board may enforce settlement agreements
that have been entered into the record, independent of any prior finding of Board
jurisdiction over the underlying matter being settled) .
¶6 Here, we find that the parties have, in fact, ent ered into a settlement
agreement, understand its terms, and intend for the agreement to be entered into
the record for enforc ement by the Bo ard.3 PFR File, Tab 8 . In addition, we find
that the agreement is lawful on its face and that the parties freely entered into it.
Id.
¶7 Accordingly, we find that dismissing the appeal “with prejudice to refiling”
(i.e., the parties normall y may not refile this appeal) is appropriate under these
circumstances, and we accept the settlement agreement into the record for
enforcement purposes. This is the final decision of the Merit Systems Protection
Board in this appeal. Title 5 of the Code of Federal Regulations,
section 1201.113 ( 5 C.F.R. § 1201.113 ).
3 We dismiss the appeal pursuant to the settlement agreement even though the appellant
filed her withdrawal beyond the deadline specified in the agreement.
4
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this a ppeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within the ir
jurisdiction. If you wish to seek 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 appropri ate one to review your case, you
should contact that forum for more information.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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 Appeal s for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S . Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 invo lving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtai n
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
6
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 197 5 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action i nvolves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other secu rity. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims onl y, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
7
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circu it
717 Madison Place, N.W.
Washington, D.C. 20439
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 judici al review of
MSPB decisions in certain 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. Pu b. 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 Petit ioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our w ebsite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorn ey will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MACY_VALORIE_J_PH_1221_18_0335_W_1_FINAL_ORDER_1964028.pdf | 2022-09-27 | null | PH-1221 | NP |
4,071 | https://www.mspb.gov/decisions/nonprecedential/REED_MEREACOS_MARIA_AT_0752_17_0015_I_1_FINAL_ORDER_1964035.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MEREACOS MARIA REED,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-0752 -17-0015 -I-1
DATE: September 27, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
James F. Alexander, Jr ., Hawthorne, Florida, for the appellant.
Robert Cameron Swanson, Sr. , North Augusta, South Carolina, for the
appellant.
Dana C. Heck , Esquire, St. Petersburg, Florida, for the agency.
Joved Gonzalez -Rivera , Mayaguez, Puerto Rico, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
FINAL ORDER
¶1 The appellant has petitioned for review of the December 28, 2017 initial
decision in this app eal. Petition for Review (PFR) File, Tab 1; Initial Appeal
File, Tab 74, Initial Decision. For the reasons set forth below, we DISMISS the
appeal as settled.
¶2 After the filing of the petition for review, the parties submitted a document
entitled “STIPULAT ION FOR COMPROMISE SETTLEMENT AND RELEASE
OF CLAIMS” signed and dated by the parties on November 7, 2019. PFR File,
Tab 5 at 6 -10.2 The document provides, among other things, for the dismissal of
the above -captioned appeal as settled. Id. at 7.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board . See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and do not intend for the agreement to be entered into the
record for enforcement by the Board. PFR File, Tab 5 at 6 -10. As the parties do
2 The Board grants the agency’s December 12, 2019 motion to substitute a previously
submitted unredacted copy of the settlement agreement with the attached redact ed one.
PFR File, Tab 5. Accordingly, the unredacted settlement agreement has been removed
from the record.
3
not int end for the Board to enforce the settlement agreement, we need not
address the additional considerations regarding enforcement, and we do not enter
the settlement agreement into the record for enforcement by the Board.
¶5 In light of the foregoing, we find that dismissing the appeal “with prejudice
to refiling” (i.e., the parties normally may not refile this appeal) is appropriate
under these circumstances.
¶6 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RI GHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with w hich to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appr opriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law a pplicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
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 ge neral . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuan ce of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
followi ng address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of p articular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Cou rt of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the serv ices provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil a ction with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
5
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for 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 revi ew pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8 ) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Fe deral Circuit or any court of appeals of
competent jurisdiction.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 expir ed on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of App eals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” whi ch is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.g ov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representati on in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | REED_MEREACOS_MARIA_AT_0752_17_0015_I_1_FINAL_ORDER_1964035.pdf | 2022-09-27 | null | AT-0752 | NP |
4,072 | https://www.mspb.gov/decisions/nonprecedential/MACY_VALORIE_J_PH_1221_17_0324_W_1_FINAL_ORDER_1964037.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
VALORIE J. MACY,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
PH-1221 -17-0324 -W-1
DATE: September 27, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Valorie J. Macy , Granby, Massachusetts, pro se.
Helen E. Moore , Esquire, Boston, Massachusetts, for the agency.
Larry Zieff, Esq uire, Williston, Vermont, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board's case law. See 5 C.F.R. § 1201.117 (c).
2
FINAL ORDER
¶1 The appellant has petitioned for review of the initial decision in this appeal.
Petition for Review (PFR) File, Tab 1. For the reasons set forth below, we
DISMISS the appeal as settled.
¶2 After the filing of the petition for review, the agency submitted a motion to
dismiss the appeal on the basis of a settlement agreement entered into by the
parties, effective August 26, 2021. PFR File, Tab 5. The settlement agreement
provides, in pertinent part , that the appellant would withdraw with p rejudice her
pending appeal in this case and in three other cases: the joined appeals in Macy
v. Department of Homeland Security , MSPB Docket No. PH -1221 -21-0229 -W-1,
and Macy v. Department of Homeland Security , MSPB Docket No. PH -752S -21-
0211 -I-1, and separately, Macy v. Department of Homeland Security , MSPB
Docket No. PH -1221 -18-0335 -W-1. Id. at 4 -5. The settlement agreement
required that the appellant move to dismiss or withdraw these cases within
7 business days of the effective date of the settlement , i.e., by September 8,
2021. Id.
¶3 The agency’s motion to dismiss noted that although the appellant filed a
motion to dismiss her pending appeal in MSPB Docket N o. PH -1221 -21-0229 -
W-1,2 she did not move to withdraw the instant case or MSPB Docket
No. PH-1221-18-0335 -W-1 as required by the agreement . The agency further
stated that when it reminded the appellant to file the motions required in these
cases, she refused to do so until the agency had paid her the amount agreed upon
in the settlement agreement (although the requirement that she file the motions
was not dependent on the agency’s payment) . Finally, the agency stated that
2 The administrative judge accepted the settlement agreement into the record and
dismissed th is appeal and MSPB Docket N o. PH -752S -21-0211 -I-1 with prejudice on
September 2, 2021. Macy v. Department of Homeland Security , MSPB Docket
No. PH-1221 -21-0229 -W-1, Tab 58, Initial Decision ; Macy v. Department of Homeland
Security , MSPB Docket No. PH-752S -21-0211 -I-1, Tab 30, Initial Decision.
3
when the appellant still had not filed the required motions even after payment
had been made, the agency filed the motions and the settlement agreement in lieu
of the appellant. Id. at 12-13.
¶4 The appellant did not respond to the agency’s motion to dismiss. However,
on November 17, 2021, she filed a motion to withdraw her appeal pursuant to the
settlement agreement. PFR File, T ab 6.
¶5 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement , whether they understand its
terms , and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Maho ney 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 have freely entered into
it. See Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123, ¶¶ 11-21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled) .
¶6 Here, we find that the parties have, in fact, ent ered int o a settlement
agreement, understand its terms, and intend for the agreement to be entered into
the record for enforcement by the Bo ard.3 PFR File, Tab 5, at 6. In addition, we
find that the agreement is lawful on its face and that the parties freely ent ered
into it. Id.
¶7 Accordingly, we find that dismissing the appeal “with prejudice to refiling”
(i.e., the parties normally may not refile this appeal) is appropriate under these
circumstances, and we accept the settlement agreement into the record for
3 We dismiss the appeal pursuant to the settlement agreement even though the appellant
filed her withdrawal beyond the deadline specified in the agreement.
4
enforcement purposes. This is the final decision of the Merit Systems Protection
Board in this appeal. Title 5 of the Code of Federal Regulations,
section 1201.113 ( 5 C.F.R. § 1201.113 ).
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and result s of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failu re to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
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
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have que stions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must f ile a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washin gton, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probo no for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
6
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims onl y, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 2 0507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petit ion for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel p ractice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 decisi on.
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 judici al review of
MSPB decisions in certain 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. Pu b. 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 addre ss:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particula r
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Ap peals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services pro vided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MACY_VALORIE_J_PH_1221_17_0324_W_1_FINAL_ORDER_1964037.pdf | 2022-09-27 | null | PH-1221 | NP |
4,073 | https://www.mspb.gov/decisions/nonprecedential/PERLICK_DEBORAH_A_NY_1221_19_0052_X_1_ORDER_1964068.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DEBORAH A. PERLICK,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
NY-1221 -19-0052 -X-1
DATE: September 27, 2022
THIS ORDER IS NONPRECEDENTIAL1
Robert B. Stulberg , Esquire, New York, New York, for the appellant.
Mark E. Frassinelli , Esquire, Pittsburgh, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. L eavitt, Member
ORDER
¶1 In a January 12, 2022 compliance initial decision, the administrative judge
found the agency in partial noncompliance with the Board’s final decision in the
underlying appeal. Perlick v. Department of Veterans Affairs , MSPB Docket 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
NY-1221 -19-0052 -C-1, Compliance File, Tab 6, Compliance Initial Decision
(CID); Perlick v. Department of Veterans Affairs , MSPB Docket No. NY -1221 -
19-0052 -W-2, Appeal Fi le, Tab 18, Initial Decision (ID) . For the reasons stated
below, we find that the agency continues to be in noncompliance and ORDER
appropriate relief.
DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE
¶2 In a January 12, 2022 compliance initial decision, the administrative judge
found the agency in partial noncompliance with the Board’s December 23, 2020
final decision in the underlying appeal2 because the agency had failed to pay the
appellant all the back pay to which she was entitled, with interest; had not
adjust ed the appellant’s benefits with appropriate credits and deductions in
accordance with the Office of Personnel Management’s regulations; and had not
informed the appellant in writing of all the actions the agency had taken to
comply with the Board’s order and the date on which the agency believed it had
fully c omplied. In regard to back pay specifically, the administrative judge found
that while the agency had paid the appellant $48,716.66, representing back pay
for the period between November 4, 2017, and June 6, 2018, it still owed the
appellant back pay from June 7, 2018, through March 31, 2020. See CID at 2 n.2,
3-5
¶3 The administrative judge ordered the agency to “[p]ay appellant . . . for the
appropriate amount of back pay, with interest, through Mar ch 31, 2020,
minus . . . []$48, 716.66[,] and to adjust he r benefits with appropriate credits and
deductions (among these a credit of $11,359.44 in Thrift Savings Plan deductions
and $1,668.72 in health insurance for the back pay period).” CID at 5. The
administrative judge further ordered the agency to “[i]nfo rm appellant in writing
2 The administrative judge’s December 23, 2020 initial decision in the underlying
appeal became the final decision of the Board by operation of law on January 27, 2021,
after neither party filed a petition for review. ID at 27.
3
of all actions taken to comply with the Board’s Order and the date on which it
believes it has fully complied.” Id.
¶4 The agency thereafter did not file a timely pleading with the Clerk of the
Board.3 Perlick v. Department of Vetera ns Affairs , MSPB Docket No. NY -1221 -
19-0052 -X-1, Compliance Referral File (CRF), Tab 1 at 2. Accordingly, the
appellant’s petition for enforcement has now been referred to the Board for a
final decision on issues of compliance pursuant to 5 C.F.R. § 1201.183 (c)(1).
¶5 On February 17, 2022, the Office of the Clerk of the Board issued an
acknowledgment order in the instant proceeding advising the parties that the
petition for enforcement had been referred to the Board for a final decision and
ordering the agency to submit evidence of compliance within 15 calendar days.
CRF, Tab 1 at 3. On March 2, 2022, the agency filed its response, in which it
represented that it was in full compliance wit h the compliance initial decision
because it: (1) sent the appellant’s representative a bulleted list of the personnel
actions it had taken to effectuate the back pay payment to the appellant;
3 As noted in the compliance initial decision, the Board’s regulations provide that, upon
a finding of noncompliance, the party found to be in noncompliance must do the
following:
(i) T o the extent that the party decides to take the actions required by the
initial decision, the party must submit to the Clerk of the Board, within
the time limit for filing a petition for review under § 1201.114(e) of this
part, a statement that the party h as taken the actions identified in the
initial decision, along with evidence establishing that the party has taken
those actions. The narrative statement must explain in detail why the
evidence of compliance satisfies the requirements set forth in the ini tial
decision.
(ii) To the extent that the party decides not to take all of the actions
required by the initial decision, the party must file a petition for review
under the provisions of §§ 1201.114 and 1201.115 of this part.
5 C.F.R. § 1201.183 (a)(6) (i)-(ii). The Board’s regulations further provide that if “a
party found to be in noncompliance under paragraph (a)(5) does not file a timely
pleading with the Clerk of the Board as req uired by paragraph (a)(6), the findings of
noncompliance become final and the case will be processed under the enforcement
provisions of paragraph (c)(1) of this section.” 5 C.F.R. § 1201.183 (b).
4
(2) attempted unsuccessfully to email the appellant’s represen tative the Standard
Form 50s ( SF-50s) reflecting the personnel actions; (3) spoke with the appellant’s
representative by telephone on February 9 and 10, 2022; and (4) submitted a
remedy ticket on February 9, 2022, to the Defense Finance and Accounting
Serv ice (DFAS) requesting DFAS to process the payment. CRF, Tab 2 at 4 -5.
On March 22, 2022, the appellant responded to the agency’s statement of
compliance and alleged that she had not received the payments she was owed
outside of a check for $1,668.82, to compensate her for improper health insurance
deductions. CRF, Tab 3 at 2. The appellant further noted that the agency still
had not provided a detailed narrative explaining how its evidence of compliance
satisfied the requirements of the compliance initi al decision. Id.
¶6 On June 21, 2022, the Clerk of the Board issued an order directing the
agency to respond to the appellant’s challenges to its compliance submission.
CRF, Tab 4 at 5. The Clerk further directed the agency to “identify, by name and
addres s, the agency official charged with complying with the Board’s order and
provide evidence that it has informed such official in writing of the potential
sanction for noncompliance . . . even if the agency asserts that it has fully
complied with the Board’s order.” Id.
¶7 On June 30, 2022, the agency responded to the June 21, 2022 Order. In it s
response, the agency states that on May 9, 2022, the agency received notice of
certified delivery to the appellant of a check in the amount of $174,302.28, which
purportedly represented the back pay to which the appellant is entitled. CRF, Tab
5 at 5, 8 1-82. The agency has also resubmitted the same summary of personnel
actions, SF -50s, and DFAS remedy ticket it attached to its March 2022 filing.
See id. at 9-40. The agency has not explained how it calculated the back pay
amount. The agency also has n ot identified the official charged with compliance.
The agency asserts that it is in compliance and requests that the Board dismiss the
petition for enforcement.
5
¶8 In reply, the appellant represented that the agency still had not provided
her with a det ailed, clear explanation of the calculations the agency made to
determine the amounts due to her. CRF, Tab 6 at 9. Instead, the agency had sent
the appellant Excel spreadsheets from DFAS that appeared to state the amounts
due to her, but without an expla nation of the codes and abbreviations used in the
spreadsheets. Id. at 9-10. The appellant further argued that the agency had not
carried its burden of proving compliance due to its failure to explain its
calculations. Id. at 10. The appellant has requ ested an award of monetary
sanctions and leave to file a claim for attorney fees and costs. Id. at 11.
ANALYSIS
¶9 In a compliance proceeding, the agency bears the burden of proving
compliance with a Board order by a preponderance of the evidence. 5 C.F.R.
§ 1201.183 (d). “[A]n agency’s evidence of compliance must include a clear
explanation of its compliance efforts supported by understandable documentary
evidence.” Bruton v. Department of Veterans Affairs , 111 M.S.P.R. 489 , ¶ 13
(2009). As we ruled in Bruton , a case which also concerned the provision of back
pay an d benefits, the agency’s burden is as follows:
To be in compliance regarding the provision of back pay, interest on
back pay, and benefits, the agency must provide a detailed and clear
explanation of the calculations it has made in determining the
amount due the appellant. Among other things, the agency must:
1) clearly set forth the gross amount due the appellant and show h ow
that amount was determined; 2) clearly set forth the amount and
reason for all deductions, reductions, and offsets from the gross
amount due the appellant; 3) clearly set forth the source and amount
of all checks or electronic payments already received by the
appellant and provide evidence that such checks or electronic
payments were received; and 4) clearly set forth the amount of
interest due the appellant and how that amount was calculated. The
agency must also clearly set forth its calculations relating to the
appellant ’s sick and annual leave balances, his Thrift Savings Plan
account, including both the appellant ’s and the agen cy’s
contributions, and any other benefits of employment the appellant
would have received but for the agency ’s unwarranted personnel
6
action. . . . In addition to the calculations, the agency must provide a
clear and detailed narrative explanation of its c alculations so that
the Board may understand the calculations and verify that they are
correct. The agency must provide an explanation of all codes and
abbreviations used in its documentation.
Bruton , 111 M.S.P.R. 489 , ¶ 17 (footnotes omitted) (emphasis added). If the
agency is found to be in noncompliance, then the Board may requir e the agency
and the responsible agency official to show cause why sanctions should not be
imposed, either personally, in writing, or both. 5 C.F.R. § 1201.183 (c)(1).
¶10 In this case, th e administrative judge issued orders in two measures: to pay
the appellant the back pay and benefits to which she is entitled; and to inform the
appellant in writing “of all actions taken to comply with the Board’s Order and
the date on which it believes it has fully complied.” CID at 5. We find that the
agency has not demonstrated full compliance with either of these orders.
¶11 Regarding the first order, while the agency has shown that it delivered a
check in the amount of $174,302.28 to the appellant, t he agency has made no
effort to prove to the Board that this amount is correct by explaining how the
agency arrived at it. The agency also did not produce any documentary evidence
to the Board to support any calculations it might have made. Instead, the agency
produced SF -50s, which show that personnel actions were taken in accordance
with the Board’s underlying decision. While the SF -50s reflect the appellant’s
gross annual salary, they do not show “the gross amount due the appellant” for
the relevant t ime periods, “the amount and reasons for all deductions, reductions,
and offsets from the gross amount,” “the amount of interest due the appellant,” or
the appellant’s benefits. Bruton , 111 M.S.P.R. 489 , ¶ 17. Given that the agency
has not provided “a clear explanation of its compliance efforts supported by
understandable documentary evidence,” Bruton , 111 M.S.P.R. 489 , ¶ 13, we
determine that it has not met its burden of proof.4 This burden rests with the
4 That the appellant attached the documents her representative received from the agency
regarding her back pay and benefits does not excuse the agency’s failure to carry its
7
agency, and the agency cannot evade its responsibility by relying on unexplained
calculations from its payor, DFAS. See Raymond v. Department of the Navy ,
116 M.S.P.R. 223 , ¶¶ 14 -17 (201 1) (rejecting “unsworn, vague” DFAS
memorandum and spreadsheet as evidence of compliance with the agency’s
agreement to provide back pay to the appellant, in part because they lacked
narrative explanation of calculations); see also Tichenor v. Department o f the
Army , 84 M.S.P.R. 386 , ¶ 8 (1999) (rejecting the agency’s argument that DFAS,
not the agency, improperly withheld payment from the appellant because DFAS is
the agency’s agent and no indication existed that DFAS would have refuse d to
pay the appellant if the agency ordered it to do so); Bradstreet v. Dep artment of
the Navy , 83 M.S.P.R. 288 , ¶ 12 (1999) (holding that “any failure on the part of
DFAS ‘to follow through’ or its ‘e xtraordinary’ processing requirements” did not
“excuse the agency’s substantial delay” in complying with interim relief order ).
The agency must timely work with DFAS to supply the required information in a
form that the Board can understand.
¶12 Additionally, we note that the agency has not provided all the information
to the appellant in writing as required. Here, the agency has shown that it sent
the appellant’s representative a list of personnel actions and eventually provided
the appellant’s representativ e with the SF -50s memorializing those actions.
However, the agency did not inform the appellant’s representative in writing of
its efforts to process the back pay payment through DFAS (instead, the parties
spoke by telephone), and there is no indication i n the record that it informed the
appellant’s representative in writing that it had mailed the $174,302.28 check to
burden as required under our precedents. Further, the documents are n ot accompanied
by any narrative or explanation that would help the Board to interpret them, contain
multiple abbreviations that further obscure matters, and have been produced in a form
where they are missing columns on both sides, such that the Board cann ot glean the
required information from the documents. See CRF, Tab 6 at 14 -17, 31 -35.
8
her. Thus, we find that the agency has not proven that it obeyed the order to
inform the appellant in writing of the actions it took to com ply.
ORDER
¶13 Based upon the foregoing, we find the agency in noncompliance .
Accordingly, w e ORDER the agency to submit to the Office of the Clerk of the
Board, within 20 days of this decision, satisfactory evidence of compliance with
this decision.
¶14 To be in compliance regarding the initial decision’s provision regarding
back pay, the agency must provide detailed and clear documentation and data of
the calculations it has made in determining the amount due the appellant. Among
other things, the agency must : (1) clearly set forth the gross amount due the
appellant and show how that amount was determined ; (2) clearly set forth the
amount and reason for all deductions, reductions, and offsets from the gross
amount due the appellant; (3) clearly set forth the source and amount of all
checks or electronic payments already received by the appellant and provide
evidence that such checks or electronic payments were received; and (4) clearly
set forth the amount of interest due the appellant and how that amount was
calculated . The agency must also clearly set fort h its calculations relating to the
appellant’s sick and annual leave balances , her Thrift Savings Plan account
(including both the appellant’s and the agency’s contributions ), and any other
benefits of empl oyment the appellant should have received but for the agency’s
unwarranted personnel action.
¶15 In addition to the calculations described in the previous paragraph, the
agency must also provide a clear, detailed narrative explanation of its calculations
so that the Board may understand the calculations and verify that they are correct.
The agency must provide an explanation of all codes and abbreviations used in its
narrative explanation and supporting documentation.
9
¶16 The appellant may respond to the agen cy’s evidence of compliance within
10 days of service of the agency’s evidence. If the appellant does not respond
timely , the Board may conclude that the agency’s evidence is satisfactory and
dismiss this case as moot.
¶17 We further ORDER the agency to sub mit to the Office of the Clerk of the
Board, within 20 days of this decision, evidence that it has informed the
appellant’s representative, in writing, of the actions the agency has taken to
comply with the Board’s orders and the date on which it believes it has fully
complied.
¶18 We further ORDER the agency to submit to the Office of the Clerk of the
Board, within 20 days of this decision, the name and address of the agency
official charged with complying with the Board’s order and to provide evidence
that it has informed such official in writing of the potential sanction for
noncompliance as set forth in 5 U.S.C. § 1204 (a)(2) and (e)(2)(A), even if the
agency asserts that it has fully complied with the Board’s order. 5 C.F.R.
§ 1201.183 (a)(2).
¶19 The agency is advised that should it fail to identify the agency official
charged with compliance, then the Board will presume that the h ighest -ranking
appropriate agency official who is not appointed by the President by and with the
consent of the Senate is charged with compliance. Id.
¶20 The agency is further advised that failure to comply with this Order may
result in the issuance of an o rder requiring the agency ’s representative and the
10
responsible agency official to appear before the Board to show cause why
sanctions should not be imposed under 5 U.S.C. § 1204 (a)(2) and (e)(2)(A) .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | PERLICK_DEBORAH_A_NY_1221_19_0052_X_1_ORDER_1964068.pdf | 2022-09-27 | null | NY-1221 | NP |
4,074 | https://www.mspb.gov/decisions/nonprecedential/YEAGER_ERIN_E_DE_0752_18_0367_I_1_FINAL_ORDER_1964075.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ERIN E. YEAGER,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency.
DOCKET NUMBER
DE-0752 -18-0367 -I-1
DATE: September 27, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Erin E. Yeager , Marietta, Ohio, pro se.
Deborah E. Yim , Esquire, Lakewood, Colorado, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the August 27, 2018 initial
decision in this appeal. Petition for Review (PFR) File, Tab 1; Initial Appeal
File, Tab 10, Initial Decision. For the reasons set forth below, we DISMISS the
appeal as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT AND RELEASE ” signed and dated by
the parties on July 16, 2019. PFR File, Tab 4 . The document provides, among
other things, that the appellant agreed t o withdraw with prejudice the
above -captioned appeal in exchange for the promises made by the agency . Id. at
5.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they under stand 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 i t. See Massey v.
Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002 ), overruled on
other grounds by Delorme v. Department of the Interior , 124 M.S.P.R. 123 ,
¶¶ 11-21 (2017) ( holding that the Board may enforce settlement agreements that
have been entered into the record, independent of any prior finding of Board
jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms and intend for the agreement to be entered into the record for
enforceme nt by the Board. PFR File, Tab 4 . In addition, we find that the
agreement is lawful on its face and that the parties freely entered into it. Id.
Accordingly, we find that dismissal of the appeal “with prejudice t o refiling”
(i.e., the parties normally may not refile this appeal) is appropriate under these
circumstances , and we accept the settlement agreement into the record for
enforcement purposes.
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
3
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this a ppeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono re presentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC revie w of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
5
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, exclud ing
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your represent ative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If 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 Appe als for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madis on Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into la w by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals o f competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | YEAGER_ERIN_E_DE_0752_18_0367_I_1_FINAL_ORDER_1964075.pdf | 2022-09-27 | null | DE-0752 | NP |
4,075 | https://www.mspb.gov/decisions/nonprecedential/MANDUJANO_EDWARD_SF_0752_18_0083_X_1_FINAL_ORDER_1964080.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
EDWARD MANDUJANO,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
SF-0752 -18-0083 -X-1
DATE: September 27, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Albert E. Lum , Maspeth, New York, for the appellant.
Catherine V. Meek and Tanisha J. Locke , Long Beach, California, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 On March 28, 2019, the administrative judge issu ed a compliance initial
decision finding that the agency was not in full compliance with the Board’s final
decision in the underlying appeal. Mandujano v. U.S. Postal Service , MSPB
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Docket No. SF -0752 -18-0083 -C-1, Compliance File, Tab 10, Compliance Initia l
Decision. After neither party filed a petition for review of the compliance initial
decision, this matter was referred to the Board’s Office of General Counsel to
obtain compliance. Mandujano v. U.S. Postal Service , MSPB Docket
No. SF-0752 -18-0083 -X-1, Compliance Referral File (CRF), Tab 1. For the
reasons set forth below, we DISMISS the petition for enforcement as settled.
¶2 The agency submitted a document entitled “SETTLEMENT AGREEMENT
AND GENERAL RELEASE,” signed and dated by the appellant, his
repres entative, and the agency’s counsel. CRF, Tab 5. As part of the terms of the
agreement, the appellant dismissed with prejudice any and all Equal Employment
Opportunity complaints, MSPB appeals, and all other pending administrative
complaints or grievances related to the claims released. Id. at 9.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entere d into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146 ,
149 (1988). In addition, before accepting a settlement agreement into the record
for enforcement purposes, the Board must determine whether the agreement is
lawful on its face and whether the parties freely entered into it . See Massey v.
Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) , overruled on
other grounds by Delorme v. Department of the Interior , 124 M.S.P.R. 123 ,
¶¶ 11-21 (2017) (holding that the Board may enforce settlement agreements that
have been entered into the record, independent of any prior finding of Boa rd
jurisdiction over the underlying matter being settled).
¶4 Here, we find here that the parties have, in fact, entered into a settlement
agreement, understand the terms, and want the Board to enforce those terms.
CRF, Tab 5 at 5 -6, 8. In addition, we fi nd that the agreement is lawful on its face
and that the parties freely entered into it. Id.
3
¶5 Accordingly, we find that dismissal of the petition for enforcement with
prejudice to refiling ( i.e., the parties normally may not refile this appeal) is
appropri ate under these circumstances, and we accept the settlement agreement
into the record for enforcement purposes.2 This is the final decision of the Merit
Systems Protection Board in this compliance proceeding. Title 5 of the Code of
Federal Regulations, S ection 1201.113 ( 5 C.F.R. § 1201.113 ).
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either p arty may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summ ary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which case s fall within their
2 Because we are dismissing this matter pursuant to the parties’ settlement agreement,
we have not addressed the appellant’s motion for sanctions against the agency for
noncompliance, CRF, Tab 3, which is now moot.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular foru m is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S .
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative recei ves this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepa yment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims onl y, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
6
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 2 0507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Cour t of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitione rs and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our websi te at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney w ill accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MANDUJANO_EDWARD_SF_0752_18_0083_X_1_FINAL_ORDER_1964080.pdf | 2022-09-27 | null | SF-0752 | NP |
4,076 | https://www.mspb.gov/decisions/nonprecedential/MENCHACA_JOSE_DA_3443_19_0358_I_1_FINAL_ORDER_1964196.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOSE MENCHACA,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DA-3443 -19-0358 -I-1
DATE: September 27, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jose Menchaca , San Antonio, Texas, pro se.
Richard G. Saliba , Esquire, Dallas, Texas, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the June 28, 2019 initial decision
in this appeal. Initial Appeal File, Tab 8; Petition for Review (PFR) File, Tab 1.
For the reasons set forth below, we DISMISS the appeal as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
¶2 After the filing of the petition for rev iew, the parties submitted a document
entitled “SETTLEMENT AGREEMENT AND RELEASE” signed and dated by
the appellant on December 10, 2020, and by the agency on December 14, 2020.
PFR File, Tab 5. The document provides, among other things, that the appella nt
“releases and forever discharges” the agency from the claims raised in his MSPB
appeals. Id. at 4-5.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146 ,
149 (1988). In addition, before accepting a settlement agreement into the record
for enforcement purposes, the Board must determine whether the agreement is
lawful on its face and whether the parties freely entered into it . See Massey v.
Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) , overruled on
other grounds by Delorme v. Department of the Interior , 124 M.S.P.R. 123 ,
¶¶ 11-21 (2017) (holding that the Board may enforce settlement agreements that
have been entered into the record, independent of any prior finding of Board
jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parti es have entered into a settlement agreement and
understand its terms. PFR File, Tab 5. We further find that the parties do not
intend to enter the settlement agreement into the record for enforcement by the
Board, as the agreement instead provides for en forcement through the equal
employment opportunity procedures set forth at 29 C.F.R. § 1614.504 . Id. at 8-9;
see Grubb v. Department of the Interior , 76 M.S.P.R. 639 , 642 -43 (1997) (finding
that the parties intended the Equal Employment Opportunity Commission, not the
Board, to enforce a settlement agreement that pro vided for enforcement in
accordance with 29 C.F.R. § 1614.504 ). As the parties do not intend for the
Board to enforce the settlement agreement, we need not address the additional
3
considerations regarding enforcement and do not enter the settlement agreement
into the record for enforcement by the Board.
¶5 In light of the foregoing, we find that dismissing the appeal “with prejudice
to refiling” (i.e., the parties normally may not refi le this appeal) is appropriate
under these circumstances. This is the final decision of the Merit Systems
Protection Board in this appeal. Title 5 of the Code of Federal Regulations,
section 1201.113 ( 5 C.F.R. § 1201.113 ).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
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
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono re presentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC revie w of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
5
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, exclud ing
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your represent ative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, 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 Appe als for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Mad ison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 2 7, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Fed eral Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 acc ept 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://w ww.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MENCHACA_JOSE_DA_3443_19_0358_I_1_FINAL_ORDER_1964196.pdf | 2022-09-27 | null | DA-3443 | NP |
4,077 | https://www.mspb.gov/decisions/nonprecedential/FIELDS_MORRIS_E_DA_0752_20_0095_I_1_FINAL_ORDER_1963520.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MORRIS E. FIELDS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DA-0752 -20-0095 -I-1
DATE: September 26, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
John M. Vallie , Little Rock, Arkansas, for the appellant.
Bobbi Mihal , Esquire, Dallas, Texas, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the March 31, 2020 initial
decision in this appeal. Initial Appeal File, Tab 13, Initial Decision; Petition for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Review (PFR) File, Tab 1. For the reasons set forth below, we DISMISS the
appeal as settled.
¶2 After the filing of the petition for review, the parties submitted a settleme nt
agreement signed and dated by the parties on May 28, 2020. PFR File, Tab 5.
The document provides, among other things, for the withdrawal of the
above -captioned appeal. Id.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into 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 fr eely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2022) ,
overruled on other groun ds by Delorme v. Department of the Interior , 124
M.S.P.R. 123 , ¶¶ 11-21 (2017) (holding that the Board may enforce settlement
agreements that have been entered into the record, independent of any prior
finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for t he agreement to be entered into the record
for enforcement by the Board. PFR File, Tab 5. In addition, we find that the
agreement is lawful on its face and that the parties freely entered into it. Id.
¶5 Accordingly, we find that dismissal of the appeal “with prejudice to
refiling” (i.e., the parties normally may not refile this appeal) is appropriate
under these circumstances, and we accept the settlement agreement into the
record for enforcement purposes.
¶6 This is the final decision of the Merit System s Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
3
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this a ppeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following 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 the ir
jurisdiction. If you wish to seek 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 appropri ate 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 th e 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 partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
5
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsi tes.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addre ss 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 add ressed 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.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 Feder al Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | FIELDS_MORRIS_E_DA_0752_20_0095_I_1_FINAL_ORDER_1963520.pdf | 2022-09-26 | null | DA-0752 | NP |
4,078 | https://www.mspb.gov/decisions/nonprecedential/MASSEY_ALFRED_W_DC_1221_20_0037_W_1_FINAL_ORDER_1963535.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ALFRED W. MASSEY, JR .,
Appellant,
v.
FEDERAL DEPOSIT INSU RANCE
CORPORATION,
Agency.
DOCKET NUMBER
DC-1221 -20-0037 -W-1
DATE: September 26, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Renn C. Fowler , Esquire, Silver Spring, Maryland, for the appellant.
Nestor D. Ramirez , Esquire, Arlington, Virginia, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the February 7, 2020 initial
decision in this appeal. Initial Appeal File, Tab 10, Initial Decision; Petition for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been id entified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Review (PFR) File, Tab 3. For the reasons set forth below, we DISMISS the
appeal as settled.
¶2 After the filing of the petitio n for review, the appellant submitted a
document entitled “SETTLEMENT AGREEMENT AND GENERAL RELEASE”
signed and dated by the agency on April 26, 2020, and by the appellant on
April 25, 2020. PFR File, Tab 8. The document provides, among other things,
that the appellant agreed to dismissal with prejudice of the above -captioned
appeal in exchange for the promises made by the agency. Id. at 6.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146 ,
149 (1988). In addition, before accepting a settlement agreement into the record
for enforcement purposes, the Board must determine whether the agreement is
lawful on its face and whether the parties freely entered into it . See Massey v.
Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) , overruled on
other grounds by Delorme v. Department of the Interior , 124 M.S.P.R. 123 ,
¶¶ 11-21 (2017) (holding that the Board may enforce settlement agreements that
have been entered into the record, independent of any prior finding of Board
jurisdiction over the underlying matter being settled).
¶4 Here, we find that the part ies have entered into a settlement agreement and
understand its terms but that they did not intend the agreement to be entered into
the record for enforcement by the Board.2 PFR File, Tabs 7 -8. As the parties do
2 In response to an e -Appeal prompt when submitting the settlement agreement in this
appeal, the appellant indicated that the parties agreed that the settlement agreement
would be entered into the record for enforcement by the Board. PFR File, Tab 8 at 3.
However, the settlement agreement itself provides that, if the appellant belie ves the
agency has not complied with a term of the settlement agreement, he must notify the
agency in writing and may request that the terms of the agreement be specifically
implemented or that the case be reinstated for further processing pursuant to 29 C.F.R.
3
not intend for the Board to enforce the se ttlement agreement, we need not address
the additional considerations regarding enforcement, and we do not enter the
settlement agreement into the record for enforcement by the Board.
¶5 In light of the foregoing, we find that dismissing the appeal “with pre judice
to refiling” (i.e., the parties normally may not refile this appeal) is appropriate
under these circumstances.3 This is the final decision of the Merit Systems
Protection Board in this appeal. Title 5 of the Code of Federal Regulations,
section 1201.113 ( 5 C.F.R. § 1201.113 ).
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summ ary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which case s fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
§ 1614.504 . Id. at 8 -9. As the words of the agreement itself are of paramount
importance in determining the intent of the parties at the time they contracted, we find
that the p arties did not intend the settlement agreement to be entered into the record for
enforcement by the Board but instead for the appellant to pursue enforcement through
the alternate process specified in the agreement. See Greco v. Department of the Army ,
852 F.2d 558 , 560 (Fed. Cir. 1988).
3 The appellant’s motion to withdraw his petition for review has been rendered moot by
the dismissal of this appeal as settled pursuant to the terms of the settlement agreement,
which provides for dismissal of the underlying appeal. PFR File, Tab 7; See Greco ,
852 F.2d at 560.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular foru m is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S .
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petiti on for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayme nt of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed throu gh the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your di scrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washin gton, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW1 2G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no chall enge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review ei ther with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblo wer claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Gui de for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warra nts that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MASSEY_ALFRED_W_DC_1221_20_0037_W_1_FINAL_ORDER_1963535.pdf | 2022-09-26 | null | DC-1221 | NP |
4,079 | https://www.mspb.gov/decisions/nonprecedential/MENCHACA_JOSE_DA_3443_20_0308_I_1_FINAL_ORDER_1963548.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOSE MENCHACA,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DA-3443 -20-0308 -I-1
DATE: September 26, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jose Menchaca , San Antonio, Texas, pro se.
Richard G. Saliba , Esquire, Dallas, Texas, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the May 20, 2020 initial decision
in this appeal. Initial Appeal File, Tab 7 , Initial Decision ; Petition for Review
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
(PFR) File, Tab 1. For the reasons set forth below, we DISMISS the appeal as
settled.
¶2 After the filing of the petition for review, the parties submitted a document
entitled “ SETTLEMENT AGREEMENT AND RELEASE” signed and dated by
the appellant on December 10, 2020, and by the agency on December 14, 2020.
PFR File, Tab 8. The document provides, among other things, that the appellant
“releases and forever discharges” the agency from the claims raised in his MSPB
appeals. Id. at 4-5.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agree ment entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the record, independe nt of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement and
understand its terms. PFR File, Tab 8. We further find that the parties do not
intend t o enter the settlement agreement into the record for enforcement by the
Board, as the agreement instead provides for enforcement through the equal
employment opportunity procedures set forth at 29 C.F.R. § 1614.504 . Id. at 8-9;
see Grubb v. Department of the Interior , 76 M.S.P.R. 639 , 642 -43 (1997)
(finding that the parties intended the Equal Employment Opportunity
Commission, not the Board, to enforce a settlement agreement that provided for
enforcement in accordance with 29 C.F.R. § 1614.504 ). As the parties do not
3
intend for the Board to enforce the settlement agreement, we need not address the
additional considerations regarding enforcement and do not enter the settlement
agreement into the record for enforcement by the Board.
¶5 In light of the foregoing, we find that dismissing the appeal “with prejudice
to refiling” (i.e., the parties normally may not refile this appeal) is appropriate
under these circumstances. This is the final decision of the Merit Systems
Protection Board in this appea l. Title 5 of the Code of Federal Regulations,
section 1201.113 ( 5 C.F.R. § 1201.113 ).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requ irements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Bo ard order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Pla ce, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellan ts,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
5
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action in volves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other secur ity. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial deliver y or
by a method requiring a signature, it must be addressed to:
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 Protectio n
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice descri bed in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of c ompetent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MENCHACA_JOSE_DA_3443_20_0308_I_1_FINAL_ORDER_1963548.pdf | 2022-09-26 | null | DA-3443 | NP |
4,080 | https://www.mspb.gov/decisions/nonprecedential/ROBERTS_SUSIE_DA_1221_18_0421_X_1_FINAL_ORDER_1963570.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SUSIE ROBERTS,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
DA-1221 -18-0421 -X-1
DATE: September 26, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Susie Roberts , Wynne, Arkansas, pro se.
Adam W. Boyer , Kansas City, Kansas, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 On November 12, 2019, the adm inistrative judge issued a compliance initial
decision granting the appellant’s petition for enforcement and finding the agency
in partial noncompliance with a March 1, 2019 initial decision granting the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
appellant’s request for corrective action. Roberts v. Department of Justice ,
MSPB Docket No. DA -1221 -18-0421 -C-1, Compliance File, Tab 19, Compliance
Initial Decision; Roberts v. Department of Justice , MSPB Docket No. DA -1221 -
18-0421 -W-1, Initial Appeal File, Tab 30, Initial Decision. The compliance
matte r subsequently was referred to Board for a final decision pursuant to
5 C.F.R. § 1201.183 (c). Roberts v. Department of Justice , MSPB Docket
No. DA-1221 -18-0421 -X-1, Compliance Referral File (CRF), Tab 1. For the
reasons set forth below, we now DISMISS the appellant’s petition for
enforcement as settled.
¶2 After issuance of the compliance initial decision, the parties submitted a
document entitled “SETTLEMENT AGREEMENT” signed and dated on
October 19, 2020. CRF File, Tab 4. The document provides, among other
things, that the appellant agreed to withdraw with prejudice her pending MSPB
appeals in exchange for the promises made by the agency.2 Id. at 5.
¶3 Before dismissing a matter as settle d, 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 Servic e, 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
2 The settlement agreement specifies that it should be applied to any “compliance
related complaints” associated with the appellant’s underlying cases, MSPB Docket
Nos. DA -1221 -18-0421 -P-1, DA -1221 -18-0421 -W-1, and DA -1221 -18-0421 -C-1. CRF,
Tab 4 at 5. It therefore covers this compliance matter, which is a continuation of MSPB
Docket No. DA -1221 -18-0421 -C-1.
3
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement and
understand its terms, and that they intend for the agreement to be entered into the
record for enforcement by the Board. CRF, Tab 4 at 7. In addition, we find that
the agreement is lawful on i ts face and that the parties freely entered into it.
Accordingly, we find that dismissing the petition for enforcement “with
prejudice to refiling” (i.e., the parties normally may not refile this appeal) is
appropriate under these circumstances, and we ac cept the settlement agreement
into the record for enforcement purposes.
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this a ppeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review r ights 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 the ir
jurisdiction. If you wish to seek 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 appropri ate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeal s for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S . Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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 invo lving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtai n
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action in volves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other secur ity. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
6
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial deliver y or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protectio n
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice descri bed in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of 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 app eals of competent jurisdiction expired on
7
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition f or judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional inf ormation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower repri sal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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/CourtWeb sites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ROBERTS_SUSIE_DA_1221_18_0421_X_1_FINAL_ORDER_1963570.pdf | 2022-09-26 | null | DA-1221 | NP |
4,081 | https://www.mspb.gov/decisions/nonprecedential/DALAKI_KAMRAN_AT_1221_20_0232_W_1_FINAL_ORDER_1963579.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KAMRAN DALAKI,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
AT-1221 -20-0232 -W-1
DATE: September 26, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael D. Mierau, Jr. , Esquire, Washington, D.C., for the appellant.
Michael L. Halperin , Esquire, Monterey, California, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Me mber
FINAL ORDER
¶1 After issuance of the August 12, 2020 initial decision dismissing the appeal
as settled, the parties requested to reopen the appeal to file an addendum to the
original settlement agreement for enforcement purposes . Petition for Review
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board's case law. See 5 C.F.R. § 1201.117 (c).
2
(PFR) File, Tabs 1, 3.2 For the reasons set forth below, we REOPEN the appeal
under 5 C.F.R. § 1201.118 , VACATE the initial decision, and DISMISS the
appeal as settled.
¶2 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board . See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶3 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforcement by the Board. Initial Appeal File, Tab 21; PFR File, Tabs 1, 3.
In addition, we find that the agre ement is lawful on its face and that the parties
freely entered into it. Id.
¶4 Accordingly, we find that dismissing the appeal “with prejudice to refiling”
(i.e., the parties normally may not refile this appeal) is appropriate under these
circumstances, and we accept the settlement agreement into the record for
enforcement purposes.
2 As the initial decision had already been issued and become final by the time the
parties notified the Board of the amendment to their settlement agreement, the
submission was considered and docketed as a petition fo r review of the initial decision.
PFR File, Tabs 1 -2.
3
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE TO THE P ARTIES 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 is sued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communica tions between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule re garding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within th e applicable time
limit may result in the dismissal of your case by your chosen forum.
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 whi ch option is most appropriate in any matter.
4
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for r eview with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the c ourt’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information r egarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
5
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful di scrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative recei ves this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national ori gin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, y ou may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request w ith the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative rece ives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Feder al Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in se ction 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
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, s igned into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Fede ral Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | DALAKI_KAMRAN_AT_1221_20_0232_W_1_FINAL_ORDER_1963579.pdf | 2022-09-26 | null | AT-1221 | NP |
4,082 | https://www.mspb.gov/decisions/nonprecedential/SPENCER_LAVENA_A_DC_0752_19_0792_I_1_FINAL_ORDER_1963608.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LAVENA A. SPENCER,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.
DOCKET NUMBER
DC-0752 -19-0792 -I-1
DATE: September 26, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lavena A. Spencer , College Park, Maryland, pro se.
Nnenne U. Agbai , Esquire and Robin F. Seegers, Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the May 29, 2020 initial decision
in this appeal. Initial Appeal File, Tab 33, Initial Decision; Petition for Review
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
(PFR) File, Tab 1. For the reasons set forth below, we DISMISS the appeal as
settled.
¶2 After the filing of the petition for review, the parties submi tted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant on
September 13, 2020, and by the agency on September 14, 2020. PFR File, Tab 7.
The document provides, among other things, that the appellant agreed to
withdraw the above -captioned appeal in exchange for the promises made by the
agency. Id. at 5.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they inte nd to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the record, independe nt of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement and
that they understand its terms. We further find that the parties do not intend to
enter the settlement agreement into the record for enforcement by the Board, as
the agreement instead provides that the parties will seek compliance through the
equal employment opportunity procedures set forth at 29 C.F.R. § 1614.504 .2
2 In response to an e -Appeal prompt when submitting the settlement agreement in this
appeal, the agency indicated that the parties agreed that the settlement agreem ent would
be entered into the record for enforcement by the Board. PFR File, Tab 7 at 3.
However, the settlement agreement itself provides that, in the event of a breach, the
3
PFR File, Tab 7 at 7 -8; see Grubb v. Department of the Interior , 76 M.S.P.R.
639, 642 -43 (1997) (finding that the parties intended for the Equal Employment
Opportunity Commission, not the Board, to enforce a settlement agreement that
provided for enforcement in accordance with 29 C.F.R. § 1614.504 ). As the
parties do not intend for the Board to enforce the settlement agreement, we need
not address the additional considerations regarding enforcement and do not enter
the settlement agreement into the record for enfor cement by the Board.
¶5 In light of the foregoing, we find that dismissing the appeal “with prejudice
to refiling” (i.e., the parties normally may not refile this appeal) is appropriate
under these circumstances. This is the final decision of the Merit Sys tems
Protection Board in this appeal. Title 5 of the Code of Federal Regulations,
section 1201.113 ( 5 C.F.R. § 1201.113 ).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
parties may seek enforcement of the agreement before the Equal Employment
Oppor tunity Commission pursuant to 29 C.F.R. § 1614.504 . Id. at 7-8. As the words of
the agreement itself are of paramount importance in determining the intent of the
parties at the time t hey contracted, we find that the parties did not intend the settlement
agreement to be entered into the record for enforcement by the Board but instead for the
appellant to pursue enforcement through the alternate process specified in the
agreement. See Greco v. Department of the Army , 852 F.2d 558 , 560 (Fed. Cir. 1988).
3 Since the issuance of the initial decision in this matter, the Board may ha ve updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
immediately review the law applicable to your claims and carefully fol low all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which on e applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant se eking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for t he Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action in volves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other secur ity. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial deliver y or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protectio n
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice descri bed in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of c ompetent jurisdiction.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
whistle blower claims by any court of 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 decisio ns in certain 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 St at. 1510.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SPENCER_LAVENA_A_DC_0752_19_0792_I_1_FINAL_ORDER_1963608.pdf | 2022-09-26 | null | DC-0752 | NP |
4,083 | https://www.mspb.gov/decisions/nonprecedential/ONEILL_SEAN_M_SF_315H_19_0621_I_1_FINAL_ORDER_1963627.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SEAN M. O ’NEILL,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
SF-315H -19-0621 -I-1
DATE: September 26, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sean M. O ’Neill , Stanwood, Washington, pro se.
Blaine B. Nicholson , Silverdale, Washington, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the November 20, 2019 initial
decision in this appeal. Initial Appeal File, Tab 10, Initial Decision ; Petition for
Review (PFR) File, Tab 1. For the reasons set forth below, we DISMISS the
appeal as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders ,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board's case law. See 5 C.F.R. § 1201.117 (c).
2
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant on
September 3, 2020, and by the agency on September 4, 2020. PFR File, Tab 5.
The document provides, among other things, for the dismissal of the appeal . Id.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement , whether they understand its
terms , and whether they intend to have the agreement entered into 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 p urposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) ( holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 We find here that the parties have, in fact, entered into a settlement
agree ment , that they understand the terms of the agreement, and that they agree
that the agreement will not be entered into the record for enforcement by the
Board. See PFR File, Tab 5, ¶¶ 9-10.
¶5 Accordingly, we find that dismissing the appeal “with prejudice to refiling”
(i.e., the parties normally may not refile this appeal) is appropriate under these
circumstances. This is the final decision of the Merit Systems Protection Board
in this appeal. Title 5 of the Code of Federal Regulations, se ction 1201.113
(5 C.F.R. § 1201.113 ).
3
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which 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 th e U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a p etition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional inf ormation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEO C review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision . If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
5
to waiver of any requirement of prepayment of fees, co sts, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If yo u submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Boar d’s
6
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U. S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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 Ci rcuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Pe titioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit ou r website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Board neither endorses the services provided by any attorney nor warrants that
any att orney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ONEILL_SEAN_M_SF_315H_19_0621_I_1_FINAL_ORDER_1963627.pdf | 2022-09-26 | null | SF-315H | NP |
4,084 | https://www.mspb.gov/decisions/nonprecedential/CLINE_DOUGLAS_PH_0752_19_0248_I_1_FINAL_ORDER_1963655.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DOUGLAS CLINE,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
PH-0752 -19-0248 -I-1
DATE: September 26, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Douglas Cline , North Pole, Alaska, pro se.
Jillian Barry , Pittsburgh, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the June 7, 2019 initial decision
in this appeal. Petition for Review (PFR) File, Tab 1; Initial Appeal File, Tab 7,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judge s are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Initial Decision. For the reasons set forth below, we DISMISS the petition for
review as settled.
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant on
July 1, 2019, and by the agency on July 3, 2019. PFR File, Tab 3. The
document provides, among other things, that the appellant agreed to withdraw his
petition for review pending befor e the MSPB in exchange for the promises made
by the agency. Id. at 6.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the record, independe nt of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and do not intend for the agreement to be entered into the
record for en forcement by the Board.2 PFR File, Tab 3 at 6 -9. As the parties do
2 In the agency’s motion to dismiss the appellant’s petition for review as settled, the
agency indicated that the settlement agreement was “to be enforceable by the Board.”
PFR File , Tab 3 at 4. However, the settlement agreement specifies an alternative
process for the appellant to seek redress in the event of an alleged breach. Id. at 7.
Accordingly, we find that the parties did not intend for the Board to enforce the
settlement agreement and that it is therefore not enforceable by the Board. See Zumwalt
v. Department of Veterans Affairs , 118 M.S.P.R. 574 , ¶ 1 3 (2012) (explaining that,
3
not intend for the Board to enforce the settlement agreement, we need not
address the additional considerations regarding enforcement, and we do not enter
the settlement agreement into th e record for enforcement by the Board.
¶5 In light of the foregoing, we find that dismissing the petition for review
“with prejudice to refiling” (i.e., the parties normally may not refile this appeal)
is appropriate under these circumstances. This is the fi nal decision of the Merit
Systems Protection Board in this appeal. Title 5 of the Code of Federal
Regulations, section 1201.113 ( 5 C.F.R. § 1201.113 ).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failu re to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have que stions
under the general principles of settlement construction, the words of the agreement
itself are of paramount importance and that the Board examines the four corners of the
agreement to determine the parties’ intent).
3 Since the i ssuance of the initial decision in this matter, the Board may 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 f ile a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washin gton, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
5
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayme nt of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
6
If you submit a request for review t o the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursua nt to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a pro hibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Cir cuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)( B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
4 The original statutor y provision that provided for judicial review of certain
whistleblower claims by any court of 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 i s retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washing ton, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probon o for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a g iven case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Loc ator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CLINE_DOUGLAS_PH_0752_19_0248_I_1_FINAL_ORDER_1963655.pdf | 2022-09-26 | null | PH-0752 | NP |
4,085 | https://www.mspb.gov/decisions/nonprecedential/SENULIS_MATHEW_DE_0752_19_0337_I_1_FINAL_ORDER_1963664.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MATHEW SENULIS,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency.
DOCKET NUMBER
DE-0752 -19-0337 -I-1
DATE: September 26, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carson Bridges , Esquire and Tyler J. Sroufe , Esquire, Dallas, Texas, for the
appellant.
Ryan W. Burton , Lakewood, Colorado, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavi tt, Member
Member Limon recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
¶1 The appellant has petitioned for review of the August 25, 2020 initial
decision in this appeal. Initial Appeal File, Tab 47, Initial Decision; Petition for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Review (PFR) File, Tab 3. For the reasons set forth below, we DISMISS the
appeal as settled.
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant on
November 11, 2020, and by the agency on November 13, 2020. PFR File, Tab 5.
The document provides, among other things, that the appellant agreed to
withdraw the above -captioned MSPB appeal in exchange for the promises made
by the agency. Id. at 5.
¶3 Befo re dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being set tled).
¶4 Here, we find that the parties have entered into a settlement agreement and
that they understand its terms. We further find that the parties do not intend to
enter the settlement agreement into the record for enforcement by the Board, as
the agre ement instead provides that the parties will seek compliance through the
equal employment opportunity procedures set forth at 29 C.F.R. § 1614.504 .2
2 In response to an e -Appeal prompt when submitting the settlement agreement in this
appeal, th e agency indicated that the parties agreed that the settlement agreement would
be entered into the record for enforcement by the Board. PFR File, Tab 5 at 3.
However, the settlement agreement itself provides that allegations of noncompliance
3
PFR File, Tab 5 at 8; see Grubb v. Department of the Interior , 76 M.S.P.R. 639 ,
642-43 (1997) (finding that the parties intended for the Equal Employment
Opportunity Com mission, not the Board, to enforce a settlement agreement that
provided for enforcement in accordance with 29 C.F.R. § 1614.504 ). As the
parties do not intend for the Board to enforce the settlement agreement, we need
not address the additional considerations regarding enforcement and do not enter
the settlement agreement into the record for enforcement by the Board.
¶5 In light of the foregoing, we find that dismissing the appeal “with prejudice
to refiling” (i.e., the parties normally may not refile this appeal) is appropriate
under these circumstances. This is the final decision of the Merit Systems
Protection Board in this appeal. Title 5 of the Code of Federal Regulations,
section 1201.113 ( 5 C.F.R. § 1201.113 ).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described b elow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
will be proc essed pursuant to 29 C.F.R. § 1614.504 . Id. at 8. As the words of the
agreement itself are of paramount importance in determining the intent of the parties at
the time they contracted , we find that the parties did not intend the settlement
agreement to be entered into the record for enforcement by the Board but instead for the
appellant to pursue enforcement through the alternate process specified in the
agreement. See Greco v. Depart ment of the Army , 852 F.2d 558 , 560 (Fed. Cir. 1988).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies t o your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judic ial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any a ttorney will accept representation in a given case.
5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and tha t such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accesse d through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you r eceive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later tha n 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises n o 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.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SENULIS_MATHEW_DE_0752_19_0337_I_1_FINAL_ORDER_1963664.pdf | 2022-09-26 | null | DE-0752 | NP |
4,086 | https://www.mspb.gov/decisions/nonprecedential/BAKER_TENEE_N_SF_0752_19_0455_I_1_FINAL_ORDER_1963697.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TENEE N. BAKER,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
SF-0752 -19-0455 -I-1
DATE: September 26, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tenee N. Baker , Pacific, Washington, pro se.
Stephen Funderburk , Esquire and Erica Sumioka , Seattle, Washington, for
the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the J uly 19, 2019 initial decision
in this appeal. Initial Appeal File, Tab 8, Initial Decision; Petition for Review
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
(PFR) File, Tab 1. For the reasons set forth below, we DISMISS the appeal as
settled.
¶2 After the filing of the petition for review, the partie s submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant on
July 25, 2020, and by the agency on July 24, 2020. PFR File, Tab 3. The
document provides, among other things, that the appellant agreed to withdraw
with prejudic e her MSPB appeal. Id. at 5.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the reco rd for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the record, independe nt of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement and
understand its terms. PFR File, Tab 3. We further find that the parties do not
intend t o enter the settlement agreement into the record for enforcement by the
Board, as the agreement instead provides for enforcement through the equal
employment opportunity procedures set forth at 29 C.F.R. § 1614.504 . PFR File,
Tab 3 at 7-8, Tab 4; see Grubb v. Department of the Interior , 76 M.S.P.R. 639 ,
642-43 (1997) (finding that the parties intended the Equal Employment
Opportunity Commission, not the Board, to enforce a settlement agreement that
provided for enforcement in accordance with 29 C.F.R. § 1614.504 ). As the
parties do not intend for the Board to enforce the settlement agreement, we need
3
not address the additional considerations regarding enforcement and do not enter
the settlement agreement into the record for enforceme nt by the Board.
¶5 Accordingly , we find that dismissing the appeal “with prejudice to refiling”
(i.e., the parties normally may not refile this appeal) is appropriate under these
circumstances. This is the final decision of the Merit Systems Protection Boa rd
in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113
(5 C.F.R. § 1201.113 ).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek 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 p articular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial revi ew of a final Board order must file a petition for review with the U.S.
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
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petition ers and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our webs ite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such a ction
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. C ourt of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
5
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accesse d through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you r eceive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later tha n 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
6
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises n o challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.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
relev ance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims b y any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain w histleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals f or the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided b y any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BAKER_TENEE_N_SF_0752_19_0455_I_1_FINAL_ORDER_1963697.pdf | 2022-09-26 | null | SF-0752 | NP |
4,087 | https://www.mspb.gov/decisions/nonprecedential/WILLIS_ROBERT_JAMES_DC_0432_19_0388_I_1_FINAL_ORDER_1963702.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROBERT JAMES WILLIS, JR.,
Appellant,
v.
DEPARTMENT OF HOUSIN G AND
URBAN DEVELOPMENT,
Agency.
DOCKET NUMBER
DC-0432 -19-0388 -I-1
DATE: September 26, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joseph Creed , Esquire, Bethesda, Maryland, for the appellant.
Nicole Y. Drew , Esquire, Washington, D .C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The agency has petitioned for review of the January 17, 2020 initial
decision in this appeal. Initial Appeal File, Tab 35, Initial Decision; Petition for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been id entified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Review (PFR) File, Tab 1. For the reasons set forth below, we VACATE the
initial decision and DISMISS the appeal as settled.
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant on
April 6, 2020, and by the agency on April 9, 2020. PFR File, Tab 7. The
document provides, among other things, that the appellant agreed to withdraw his
appeal and that the agency agreed to withdraw its petition for review. Id. at 8.
Pursuant to the settlement agreement, the parties moved to vacate the initial
decision and to dismiss the appeal and the agency’s petition for review. Id.
at 4-5.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board . See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the 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 7. In addition, we find that the
agreement is lawful on its face and t hat the parties freely entered into it. Id.
Accordingly, pursuant to the terms of the settlement agreement, we vacate the
3
initial decision, dismiss the appeal with prejudice as settled, and accept the
settlement agreement into the record for enforcement purposes.2
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTIC E 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 a ppeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within the ir
jurisdiction. If you wish to seek review of this final decision, you should
2 The parties’ motion to dismiss the agency’s petition for review has been rende red
moot by the dismissal of the underlying appeal as settled.
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 ad vise which option is most appropriate in any matter.
4
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropri ate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeal s for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receive s this decision before
you do, then you must file with the district court no later 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 origi n, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. di strict courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request wit h the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for revi ew to the EEOC by regular U.S. mail, the
address of the EEOC is:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhanc ement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in s ection
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Revie w 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 circu it court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you submit a petition for judici al review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practi ce, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono repr esentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WILLIS_ROBERT_JAMES_DC_0432_19_0388_I_1_FINAL_ORDER_1963702.pdf | 2022-09-26 | null | DC-0432 | NP |
4,088 | https://www.mspb.gov/decisions/nonprecedential/BRYANT_STACEY_LYNN_DC_0752_19_0095_I_1_FINAL_ORDER_1963730.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
STACEY LYNN BRYANT,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DC-0752 -19-0095 -I-1
DATE: September 26, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kimberly E. Howard , Esquire, Lexington, Kentucky, for the appellant.
Jacob B. Nist , Esquire , Fort Bragg , North Carolina, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The agency has petitioned for review of the initial decision in this appeal.
Petition for Review (PFR) File, Tab 1. For the reasons set forth below, we
REOPEN the appeal, VACATE the initial decision , DISMISS the appeal as
settled , and FORWARD the appellant’s August 7, 2020 pleading to the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c).
2
Washington Regional Office for docketing as a timely filed petition for
enforcement of this final decision .2
¶2 After the filing of the petition for review, the parties submitted a document
entitled “ NEGOTIATED SETTLEMENT AGREEMENT” signed and dated by
the ap pellant on January 15, 2020, and by the agency on January 24, 2020 . PFR
File, Tab 6. The document provides, among other things, for the withdrawal of
both the agency’s petition for review and the appellant’s underlying appeal and
requests that the initia l decision be vacated . Id. at 5-6.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into t he record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11-21 (2017) ( holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled) .
¶4 Here, we find that the parties have entered into a settlement agreement, that
they understand its terms, and that they intend for the agreement to be entered
into the record for enfo rcement by the Board. PFR File, Tab 6 at 7. In addition,
2 The parties have filed pleadings raising certain matters pertaining to enforcement of
the fully executed settlement agreement. See PFR File, Tabs 7, 9. In accordance with
the Board’s regulations pertaining to enforcement of final decisions , we forward this
matter to the regional office for further processing as described in this Final Order . See
5 C.F.R. § 1201.182 .
3
we find that the agreement is lawful on its face and that the parties freely entered
into it. See id.
¶5 Accordingly, we find that dismissing the appeal “with prejudice to refiling”
(i.e., the parties normally may not refile this appeal) is appropriate under these
circumstances, and we accept the settlement agreement into the record for
enforcement purposes. In accordance with the pleadings of the partie s filed
subsequent to the settlement agreement , we hereby forward the appellant’s
August 7, 2020 pleading to the Board’s Washington Regional Office for
docketing as a timely filed petition for enforcement.
¶6 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petit ion should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of you r claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
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
Although we offer the following summary of available appeal rights, th e Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
5
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar da ys
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
6
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your 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
7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/ CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BRYANT_STACEY_LYNN_DC_0752_19_0095_I_1_FINAL_ORDER_1963730.pdf | 2022-09-26 | null | DC-0752 | NP |
4,089 | https://www.mspb.gov/decisions/nonprecedential/TAREL_TRACIE_AT_1221_20_0409_W_1_FINAL_ORDER_1963740.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TRACIE TAREL,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
AT-1221 -20-0409 -W-1
DATE: September 26, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tracie Tarel , Chester, Virginia, pro se.
Benjamin Thomas Clark , Savannah, Georgia, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the July 27, 2020 initial decision
in this appeal . Petition for Review (PFR) File, Tab 1; Initial Appeal File, Tab 14,
Initial Decision. For the reasons set forth below, we VACATE the initial
decision and DISMISS the appeal as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
¶2 After the filing of the petition for review, the parties submitted a document
entitled “Settlement Agreement ,” which they had signed and dated on August 2,
2021. PFR File, Tab 4. The document provides, among other things, that the
parties agreed to the dismissal with prejudice of the above -captioned appeal and
that the July 27, 2020 initial decision be vacated. Id. at 4.
¶3 Before dismissing a matter as se ttled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Se rvice , 37 M.S.P.R. 146 ,
149 (1988). In addition, before accepting a settlement agreement into the record
for enforcement purposes, the B oard must determine whether the agreement is
lawful on its face and whether the parties freely entered into it . See Massey v.
Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) , overruled on
other grounds by Delorme v. Department of the Interior , 124 M.S.P.R. 123 ,
¶¶ 11-21 (2017) (holding that the Board may enforce settlement agreements that
have been entered into the record, independent of any prior finding of Board
jurisdiction over the underlying matter being settled).
¶4 Here, we find that th e 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 4. In addition, we find that the
agreement is lawful on its face and that the parties freely entered into it. Id.
¶5 Accordingly, pursuant to the terms of the settlement agreement, we vacate
the July 2 7, 2020 initial decision, dismiss the appeal as settled, and accept the
settlement agreement into the record for enforcement by the Board.
¶6 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Reg ulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
3
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party belie ves that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on w hich 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
imme diately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in th e 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 availabl e at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposi tion of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
5
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action in volves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other secur ity. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial deliver y or
by a method requiring a signature, it must be addressed to:
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 Protectio n
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice descri bed in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of c ompetent jurisdiction.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 Feder al Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | TAREL_TRACIE_AT_1221_20_0409_W_1_FINAL_ORDER_1963740.pdf | 2022-09-26 | null | AT-1221 | NP |
4,090 | https://www.mspb.gov/decisions/nonprecedential/JONES_HAROLD_BERNARD_DC_0752_19_0069_I_1_FINAL_ORDER_1963747.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
HAROLD BERNARD JONES ,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DC-0752 -19-0069 -I-1
DATE: September 26, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Harold Bernard Jones , Charlotte, North Carolina, pro se.
Greg Allan Ribreau , Charlotte, North Carolina, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The agency has petitioned for review of the July 8, 2019 initial decision in
this appeal. Petition for Review (PFR) File, Tab 1; Initial Appeal File, Tab 21,
Initial Decision. For the reasons set forth below, we DISMISS the appeal as
settled .
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been id entified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT AND RELEASE ” signed and dated by
the appellant on December 1, 2019, and by the agency on December 2, 2019.
PFR File, Tab 3 . The document provid es, among other things, that the appellant
agreed to withdraw the above -captioned appeal in exchange for the promises
made by the agency . Id. at 4.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settle ment agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) ( holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforceme nt by the Board. PFR File, Tab 3 . In addition, we find that the
agreement is lawful on its face and that the parties freely entered into it. Id.
Accordingly, we find that dismissa l of the appeal “with prejudice to refiling”
(i.e., the parties normally may not refile this appeal) is appropriate under these
circumstances , and we accept the settlement agreement into the record for
enforcement purposes.
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
3
NOTICE TO THE PART IES 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 issue d the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communicatio ns between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we of fer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rul e regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file withi n the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whe ther a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition f or review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
5
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscou rts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requi ring a signature, it must be addressed to:
6
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2 012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice descri bed in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition fo r judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblo wer claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Additional info rmation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules o f Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | JONES_HAROLD_BERNARD_DC_0752_19_0069_I_1_FINAL_ORDER_1963747.pdf | 2022-09-26 | null | DC-0752 | NP |
4,091 | https://www.mspb.gov/decisions/nonprecedential/MARTINEZ_MARIO_DA_1221_18_0201_W_1_FINAL_ORDER_1963754.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARIO MARTINEZ,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DA-1221 -18-0201 -W-1
DATE: September 26, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Victoria M. Harrison , Esquire, Washington, D.C., for the appellant.
Mary K. Monahan and Simon Fisherow , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the September 10, 2018 initial
decision in this individual right of action appeal. Petition for Review (PFR) File,
Tab 1. For the reasons set forth below, we DISMISS the appeal as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c).
2
¶2 After the filing of the petition for review, the part ies submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant on
February 21, 2019, and by the agency on February 22, 2019. PFR File, Tab 6.
The document provides, among other things, that the appellant agreed to
withdraw the above -captioned appeal in exchange for the promises made by the
agency . Id. at 4.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether th ey intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Per sonnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11-21 (2017) ( holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforceme nt by the Board. PFR File, Tab 6 . In addition, we find that the
agreement is lawful on its face and that the parties freely entered into it. Id.
¶5 Accordingly, we find that dismissing the appeal “with prejudice to refiling”
(i.e., the parties normally may not refile this appeal) is appropriate under these
circumstances, and we accept the settlement agreement into the record for
enforcement purposes.
¶6 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
3
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the par ties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seekin g such
review and 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 pro vide 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 dec ision, 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 r ead carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If 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 th e 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 su bmit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
5
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their resp ective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employm ent
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operation s within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Op portunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
6
Office of Federal Operations
Equal Employment Opportunit y Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclos ures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your j udicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then yo u may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.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 Feder al Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 t he services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MARTINEZ_MARIO_DA_1221_18_0201_W_1_FINAL_ORDER_1963754.pdf | 2022-09-26 | null | DA-1221 | NP |
4,092 | https://www.mspb.gov/decisions/nonprecedential/GOINS_BRANDON_M_SF_3330_21_0214_X_1_FINAL_ORDER_1963068.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BRANDON M. GOINS,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
SF-3330 -21-0214 -X-1
DATE: September 23, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Brandon M. Goins , APO, AP, pro se.
Chad H. Arnesen , Esquire and Harrison Spencer , APO, AP, for the agency.
BEFORE
Cathy A. Harris , Vice Chair
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 In a November 8, 2021 compliance initial decision, the administrative judge
found the agency in noncompliance with the Board’s August 9, 2021 final
decision, which ordered the agency to reconstruct the hiring process for a position
for which it had denied the appellant the opportunity to compete in violation of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
his veterans’ preference rights under the Veteran’s Employment Opportunities
Act of 1998 (VEOA), 5 U.S.C. § 3304 (f)(1) . Goins v. Department of the Army ,
MSPB Docket No. SF-3330 -21-0214-I-1, Initial Appeal File (IAF) , Tab 15, Initial
Decision ; Goins v. Department of the Army , MSPB Docket No. SF-3330 -21-0214 -
C-1, Compliance File, Tab 11, Compliance Initial Decision (CID). For the
reasons discussed below, we find the agency in compliance and DISMISS the
petition for enforcement.
DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE
¶2 In the compliance initial decision, the administrative judge found that,
although the agency attempted to reconst ruct the hiring process, it did not provide
evidence indicating precisely what steps it had taken to comply with the Board’s
order, including whether it had removed the improperly appointed selectee from
the subject position during the reconstructio n, appl ied the same criteria to the
appellant’s application that it applied to the other candidates , and/or engaged in
more than a merely hypothetical reconstruction process. CID at 3. Accordingly,
he granted the appellant’s petition for enforcement and again o rdered the agency
to reconstruct the selection process for the position, consistent with the
requirements set forth at 5 U.S.C. § 3304 (f)(1), to include taking the improperly
appointed selectee out of the position during the reconstruction process. CID
at 4.
¶3 The administrative judge informed the agency that, if it decided to take the
ordered actions, it must submit to the Clerk of the Board a narrative statement and
evidence establishing compliance . CID at 4-5. The administrative judge also
informed the parties that they could file a petition for review if they disagreed
with the compliance initial decision . CID at 5. Neither party filed any
submission with the Clerk of the Board within the time limit set forth in 5 C.F.R.
§ 1201.114 . Accordingly , pursuant to 5 C.F.R. § 1201.183 (b)-(c), the
administrative judge’s findings of noncompliance have become final, and the
3
appellant’s petition for enforcement has been referred to the Board for a final
decision on issues of compliance. Goins v. Department of the Army , MSPB
Docket No. SF -3330 -21-0214-X-1, Compliance Referral File (CRF), Tab 1.
¶4 On December 21, 2021, the Board issued an acknowledgment order
directing the agency to submit evidence showing that it ha d complied with all
actions identified in the compliance initial decision. CRF, Tab 1 at 3. In a
January 4, 2022 response, the agency stated and provided evidence reflecting that
it reconstructed the hiring process a second tim e but again did not select the
appellant for the position . CRF, Tab 2. The agency’s evidence included copies
of the resumes of each candidate considered, the scoring matrix used by the
reconstructed hiring board to rate the candidates, the agency’s position
description, and a memorandum signed by the hiring official outlining the steps
that were taken, including r emoval of the improperly appointed selectee from the
position during the reconstruction. Id.
¶5 On January 10, 2022, the appellant responded to the agency’s submission.
CRF, Tab 3. He alleged that the agency did not afford him an opportunity to
compete in the second hiring reconstruction and that it was un clear whether the
agency’s hiring process complied with Department of Defense Instruction (DODI)
1400.25, Volume 1232, entitled , “DoD Civilian Personnel Management System:
Employment of Family Members in Foreign Areas,” as no information was
provided by the agency as to whether the improperly appointed selectee qualified
for veterans’ preference, military spouse preference, or fami ly member
preference. Id. at 4. He also allege d that the agency ha d not provided any
supporting documentation to show that he was ever placed on a missed
consideration list, as the agency had previously indicated. Id.; IAF, Tab 5. The
agency did not re spond.
¶6 On March 11, 2022, the Board ordered the agency to respond to the
appellant’s allegations of noncompliance, as well as attest to its compliance with
the administrative judge’s orders to properly reconstruct its hiring process that
4
violated the appellant’s veterans’ preference rights under VEOA. CRF, Tab 4. In
an April 1, 2022 response, the agency averred, and provided evidence showing,
that it reconstructed the hiring process a third time. CRF, Tab 6 at 6, 9, 45. The
agency stat ed that, in this third reconstruction, it properly applied and considered
the preference entitlements of each candidate, to include the appellant’s family
member preference under DODI 1400.25, Volume 1232, and both the appellant’s
and original selectee’s v eterans’ preference rights. Id. Although the
reconstruction did not result in the appellant’s selection, the agency stated that it
had provided the appellant a lawful hiring process consistent with law and was
now in compliance with the administrative ju dge’s orders. Id. at 8. The agency
further averred that it had placed the appellant on a missed consideration list as of
March 30, 2021, as an interim remedy2 for the agency’s error in determining the
appellant unqualified for the position at issue. Id. at 7-8, 61.
¶7 On April 7, 2022, the appellant responded to the agency’s submission,
challenging various aspects of the hiring reconstruction and requesting lost wages
and sanctions against the agency. CRF, Tab 7. The agency did not respond.
ANALYSIS
¶8 The Board has jurisdiction to consider an appellant ’s claim of agency
noncompliance with a Board decision. See Kerr v. National Endowment for the
Arts, 726 F.2d 730 , 733 (Fed.Cir.1984); Weed v. Social Security Admi nistration ,
110 M.S.P.R. 468 , ¶ 5 (2009) . The Board ’s authority to remedy noncompliance is
broad and far -reaching and functions to ensure that employees or applicants for
employment are returned to the status quo ante or the position that they would
have been in had the unlawful agency action not occurred. Kerr , 726 F.2 d at 733;
Weed , 110 M.S.P.R. 468 , ¶ 5. It is the agency's burden to prove by preponderant
2 The Board did not order the appellant’s placement on the agency’s missed
consideration list as an interim remedy. Instead, this action was both proposed, and
initiated , by the agency. A copy the agency’s missed consideration log, dated March
29, 2022, w as provided with the agency’s April 1, 2022 response. CRF, Tab 6 at 61.
5
evidence that it has fully complied with a final Board decision. Weed ,
110 M.S.P.R. 468 , ¶ 5. Thus, in the instant case, the agency must show that it
properly reconstructed the hiring process for the position at issue .
¶9 Under VEOA, an appellant whose veterans ’ preference rights were violated
with respect to a selection process is entitled to a selection process consistent
with law. Weed , 110 M.S.P.R. 468 , ¶ 6. To properly reconstruct a selection, an
agency must conduct an actual selection process based on the same circu mstances
surrounding the original faulty selection. Washburn v. Department of the Air
Force , 119 M.S.P.R. 265 , ¶ 14 (2013). This includes taking the original selectee
out of the position, conducting and evaluating an interview of the appellant that
can be meaningfully compared with the original selectee’s interview, and filling
the same number of vacancies as before. Id.
¶10 Here, t he agency argues that it has now properly reconstructed the hiring
process and has provided evidence showing that it removed the original selectee
from the position for the reconstruction, reinterviewed the appellant with a hiring
board that included one o f the same members of the original hiring board, and
filled the same number of vacancies. CRF, Tab 6. In support, the agency
provided: (1) a Certificate of Eligibles , dated October 7, 2021, containing the
names and preference entitlements for each candi date, including the appellant and
the original selectee, id. at 39; (2) a Candidate Scoring Matrix, containing the
reconstructed hiring board’s ratings for each candidate and identifying the
original selectee as its fourth overall pick and the appellant as its fifth overall
pick, id. at 63; and (3) copies of the appellant’s and original selectee’s resumes,
id. at 64 -82.
¶11 In addition, the agency provided the hiring official’s March 25, 2022
affidavit in which he attested that “[u]pon completion of the reconstructed hiring
process, [he] affirmed that [the original selectee] should be recommended for the
[position at issue]” for the following reasons: (1) the original selectee’s
pre-interview scores were higher than the appellant’s sco res; (2) both the original
6
selectee and the appellant were entitled to veterans’ preference; (3) upon
comparison of their resumes, the original selectee’s prior work experience was a
better fit for the position compared to the appellant’s “due to skill set s required to
operate in Global Command Support System – Army programs and fulfilling
related Property Book Office duties and responsibilities”; (4) the hiring board had
determined that the original selectee was more qualified for the position; and
(5) the original selectee hypothetically would have accepted the position at issue,
as demonstrated by the fact that the original selectee accepted the position. Id.
at 45. A lso a ttached to the hiring official’s affidavit were four “Memorandum
[sic] for Record, ” including three documenting his directives to the reconstructed
hiring board and one signed by a member of the hiring board documenting the
hiring board’s reconstructed interview of the appellant on March 22, 2022, and its
unanimous post -interview recomm endation that, based on its review of pre - and
post-interview documentation and candidate scores, the hiring official should hire
the original selectee. Id. at 47-50.
¶12 In his response to the agency’s compliance submission, however, the
appellant argues t hat the agency did not provide him a lawful selection process.
For the reasons that follow, we find no merit to the appellant’s arguments.
¶13 First, the appellant argues that the agency did not provide him a lawful
selection process because he was not asked the same interview questions as the
original selectee during his reconstructed interview. CRF, Tab 7 at 5. Although
the Board ordered the agency to submit evidence showing that the ap pellant was
asked the same interview questions as the original selectee during his
reconstructed interview , CRF, Tab 4 at 5, it is not necessary to a lawful
reconstructed selection process as long as the agency can otherwise show that it
conducted and evaluated an interview of the appellant that is meaningfully
comparable wit h the original selectee ’s interview. See Washburn , 119 M.S.P.R.
265, ¶ 14 . Here, the agency asserts that, although no record of the exact
questions asked by the original board was retained, the hiring official directed the
7
reconstructed hiring board to make all efforts to ask the appellant the same
interview questions as the o riginal selectee. CRF, Tab 6 at 43 -44. To that end,
the reconstructed hiring board member who served on the original hiring board
advised the other members regarding the original hiring board’s interview
practices, subject matter of interview questions asked, and the reasons for its
decision to hire the original selectee. Id. at 12, 44, 50. The agency further
asserts that the appellant was asked questions of the same subject matter and that
his reconstructed interview lasted roughly the same duration o f time as the
selected candidate’s interview. Id. at 11. In light of these circumstances, we find
that the agency satisfied its obligation to conduct and evaluate an interview of the
appellant that was meaningfully compara ble with the original selectee’s
interview, even though it was unable to ask the appellant identical questions to
those asked during the original hiring process.3 See Washburn , 119 M.S.P.R. 265 ,
¶ 14.
¶14 Next, the appellant argues that the reconstructed selection process was not
lawful because his status as a preference eligible under VEOA and his family
member preference should have placed him “at the top of the lis ting for
consideration” by the agency. CRF, Tab 7 at 4. However, the appellant’s belief
that he should have been ranked higher than the other applicants does not
establish that the agency failed to provide him a lawful selection process. The
agency has provided as evidence a copy of the full, ranked list of candidates that
it considered during the reconstruction , accompanied by the candidates’ scores
and preference entitlements. CRF, Tab 6 at 39, 43 -44, 63. This evidence shows
3 The appellant claims that the agency’s failure to maintain the original selectee’s
interview questions is a violation of 29 C.F.R. § 1602.14 , which requires employers to
maintain personnel or employment records related to hiring for 1 year. CRF, Tab 7
at 6. Assuming arguendo that 29 C.F.R. § 160 2.14 is applicable here, the agency’s
compliance (or lack thereof) with this records management provision does not affect the
dispositive issue before us of whether the agency provided the appellant a lawful
selection process.
8
that both the appellant a nd the selected candidate are entitled to veterans’
preference, as they are both preference eligibles ,4 and that the agency considered
the preference entitlements of each candidate during the reconstruction, including
the appellant’s family member preferen ce. CRF, Tab 6 at 6, 39, 45. Accordingly,
we find that the agency properly applied and considered the appellant’s veterans’
preference and family member preference in reconstructing the hiring process.
¶15 The appellant also appears to argue that the recon structed hiring process
was not lawful because the agency may not have considered his eligibility for
Schedule A hiring or reinstatement under 5 C.F.R. § 315.401 . CRF, Tab 7 at 4.
However, Schedule A hiring may be used only in a noncompetitive hiring
process ; therefore , it was unavailable in the reconstructed hiring process here for
a competitive service position. See 5 C.F.R. § 213.3102 (u); CRF, Tab 6 at 27. In
addition, while “an agency may appoint by reinstatement to a competitive service
position a person who previously was employed under career or
career -conditional appointment (or equivalent),” reinstatemen t eligibility is not a
guarantee that an employee will be considered for a specific position or be
appointed to it. See 5 C.F.R. § 315.401 (a) (emphasis added) ; see also Hicks v.
Departme nt of the Navy , 33 M.S.P.R. 511 (1987) (the Board lacks jurisdiction
over an agency’s decision not to reinstate an employee pursuant to 5 C.F.R.
§ 315.401 ). Accordingly, the appellant’s arguments do not demonstrate any error
in the reconstructed hiring process.
¶16 Finally, the appellant argues, without evidence, that it is his belief that the
agency never conducted interviews of the candidates during the original hiring
process. CRF, Tab 7 at 6. However, the agency’s evidence reflects otherwise. In
particular, the agency provided a scoring matrix showing the dates that the
4 As both the selected ca ndidate and the appellant are preference eligibles under VEOA,
the agency was not required to seek preapproval from the Office of Personnel
Management before passing over the appellant, regardless of any compensable
service -connected disability he may have . See 5 U.S.C. § 3318 (c)(1)-(2).
9
original hiring board conducted these interview s and its interview r emarks for
each candidate . Id. at 62-63; CRF, Tab 2 at 9. The agency’s evidence also shows
that one of the three members of the reconstructed hiring board served on the
original hiring b oard and advised the other members regarding the original hiring
board’s interview practices, subject matter of interview questions asked, and the
reasons for its decision to hire the original selectee.5 CRF, Tab 6 at 12, 44, 50.
Therefore, we find that the agency’s evidence outweighs the appellant’s cursory
and unsupported allegation and provides no basis to find that the agency did not
conduct interviews during the original hiring process or otherwise provide him a
lawful reconstructed selection process .
¶17 We have considered the appellant’s myriad other challenges to the agency’s
compliance and find them unpersuasive.
¶18 In consideration of the agency’s evidence of compliance, and all arguments
put forward by the appellant, we find that the agency’s recon struction of its hiring
process is consistent with law and provided the appellant an opportunity to
compete for the position at issue , with his veterans’ preference rights and family
member preference properly applied and considered . CRF, Tab s 6-7.
Speci fically, we find that the agency’s reconstruction was based on the same
circumstances surrounding the original faulty selection and involved taking the
original selectee out of the position, conducting and evaluating an interview of
the appellant that was meaningfully comparable with the original selectee’s
interview, and filling the same number of vacancies. See Washburn , 119
M.S.P .R. 265 , ¶ 14. As the lawful reconstruct ed hiring process demonstrated
that, in the absence of a violation of the appellant’s veterans’ preference rights,
the agency would not have selected him for the position because he was not the
5 As one of the members of the original hiring board served on the reconstructed hiring
board, only the appellant was required to be interviewed during the reconstruction. The
agency was not required to re -interview the other candidates. See Phillips v.
Department of the Navy , 114 M.S.P.R. 19 , ¶ 18 (2010) .
10
best candidate, he has not suffered any los t wages or benefits that would entitle
him to an award under 5 U.S.C. § 3330c (a). See Lodge v. Department of the
Treasury , 107 M.S.P.R. 22 , ¶ 15 (2007). Accordingly, his requests to be issued
such an award are denied.6
¶19 In light of the foregoing, we find that the agency is now in compliance and
dismiss the appellant’s 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, sec tion 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)).
NOTICE OF APPEAL RIG HTS7
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
6 We additionally deny the appellant’s request for sanctions or other “follo w-up
action [s].” CRF, Tab 7 at 7. The Board’s ability to impose sanctions is a means to
enforce compliance. Eikenberry v. Department of the Interior , 39 M.S.P.R. 119 , 121
(1988). Here, the agency has submitted evidence of compliance , and therefore, it would
be inappropriate for the Board to impose sanctions at this time. Id.
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
11
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
12
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their resp ective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employm ent
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operation s within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
13
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Em ployment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whi stleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C ), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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:
8 The original statutory provision that provided for judic ial review of certain
whistleblower claims by any court of 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 ju dicial review of
MSPB decisions in certain 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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www. cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for a n appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board n either endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the li nk below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | GOINS_BRANDON_M_SF_3330_21_0214_X_1_FINAL_ORDER_1963068.pdf | 2022-09-23 | null | SF-3330 | NP |
4,093 | https://www.mspb.gov/decisions/nonprecedential/HAMMOND_SCHWANDA_G_DA_3330_18_0237_C_1_FINAL_ORDER_1963137.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SCHWANDA G. HAMMOND,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DA-3330 -18-0237 -C-1
DATE: September 23, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Schwanda G. Hammond , Fort Worth, Texas, pro se .
Susan L. Lovell , Esquire, Fort Belvoir, Virginia, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the October 1, 2019 complianc e
initial decision in this appeal. Compliance File, Tab 6, Compliance 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 dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Decision; Compliance Petition for Review (CPFR) File, Tab 1. For the reasons
set forth below, we DISMISS this compliance appeal as settled.
¶2 After the filing of the compliance p etition for review, the parties submitted
a document entitled “SETTLEMENT AGREEMENT” signed and dated by the
appellant on March 11, 2020, and by the agency on March 12, 2020. CPFR File,
Tab 11. The document provides, among other things, that the appellan t agreed to
withdraw with prejudice all pending causes of action against the agency. Id. at 8.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, an d whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the I nterior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into t he record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement and
understand its terms but, for the following reasons, that they did not intend the
settlement agreement to be entered into the record for enforcement by the Board
in this appeal.
¶5 The settlement agreement provides that the parties agreed it would be
entered into the record for enforcement in another Board appeal, MSPB Docket
No. DA -0752 -20-0103 -I-1.2 CPFR File, Tab 11 at 11. However, in response to
2 In a March 19, 2020 initial decision in the appeal specified in the settlement
agreement , MSPB Docket No. DA -0752 -20-0103 -I-1, the administrative judge entered
the March 2020 settlement agreement into the reco rd for enforcement by the Board.
3
an e -Appeal Online prompt when submitting the settlement agreement in this
appeal, the agency indicated that the parties agreed that the settlement agreement
would be entered into the record for enforcement. Id. at 3. Given the conflicting
statements, the Board informed the parties that, if they wanted the settlement
agreement to be entered into the record for enforcement in this appeal, they must
submit a properly executed amend ment to that effect. CPFR File, Tab 12.
Although the parties responded to the Board’s order,3 they did not submit an
amendment or otherwise address their intent regarding enforcement. CPFR File,
Tabs 13-15. Therefore, pursuant to the unambiguous term o f the settlement
agreement, we find that the parties intended the settlement agreement to be
entered into the record for enforcement in MSPB Docket No. DA -0752 -20-0103 -
I-1, but not in this appeal. See Greco v. Department of the Army , 852 F.2d 558 ,
560 (Fed. Cir. 1988) (in construing the terms of a written settlement agreement,
the words of the agreement itself are of paramount importance in determining the
intent of the parties at the time they contracted). As the parties do not intend for
Hammond v. Department of Defense , MSPB Docket No. DA -0752 -20-0103 -I-1, Initial
Appeal File, Tab 33, Initial Decision. On August 12, 2020, the appellant petitioned for
enforcement of the settlement agreement in that appeal . Hammond v. Department of
Defense , MSPB Docket No. DA -0752 -20-0103 -C-1, Compliance File ( 0103 CF), Tab 1.
In an October 7, 2020 compliance initial decision, the administrative judge found that
the appellant failed to show that the agency breached the se ttlement agreement and
denied her petition for enforcement. 0103 CF, Tab 16, Compliance Initial Decision.
On November 11, 2020, the appellant petitioned for review of the compliance initial
decision. Hammond v. Department of Defense , MSPB Docket No. DA -0752 -20-0103 -
C-1, Compliance Petition for Review File, Tab 1. The appellant’s petition for review of
the compliance initial decision remains pending before the Board.
3 On September 21, 2021, the appellant submitted a copy of a December 11, 2020
motion s he had filed in MSPB Docket No. DA -0752 -20-0103 -C-1 regarding agency
noncompliance with the March 2020 settlement agreement. CPFR File, Tab 13. The
agency moved to dismiss the appeal as settled pursuant to the March 2020 settlement
agreement and resubmit ted a copy of the agreement. CPFR File, Tabs 14 -15. To the
extent the appellant’s resubmission of her December 11, 2020 motion is an attempt to
challenge in this appeal the agency’s compliance with the March 2020 settlement
agreement, it is not properly before the Board, and we therefore need not address it.
4
the Bo ard to enforce the settlement agreement in this appeal, we need not address
the additional considerations regarding enforcement, and we do not enter the
settlement agreement into the record for enforcement by the Board.
¶6 In light of the foregoing, we find t hat dismissing the above -captioned
compliance appeal “with prejudice to refiling” (i.e., the parties normally may not
refile this appeal) is appropriate under these circumstances.
¶7 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represen t a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek 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.
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
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a fina l Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
6
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action in volves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other secur ity. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial deliver y or
by a method requiring a signature, it must be addressed to:
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 Protectio n
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice descri bed in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act , signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit co urt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 i nformation regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/Co urtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HAMMOND_SCHWANDA_G_DA_3330_18_0237_C_1_FINAL_ORDER_1963137.pdf | 2022-09-23 | null | DA-3330 | NP |
4,094 | https://www.mspb.gov/decisions/nonprecedential/HAMMOND_SCHWANDA_G_DA_1221_19_0492_W_1_FINAL_ORDER_1963180.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SCHWANDA G. HAMMOND,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DA-1221 -19-0492 -W-1
DATE: September 23, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Schwanda G. Hammond , Fort Worth, Texas, pro se.
Susan L. Lovell , Esquire, Fort Belvoir, Virginia, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the December 12, 2019 initial
decision in this individual right of action appeal. Initial Appeal File, Tab 18,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Initial Decision; Petition for Review (PFR) File, Tab 3. For the reasons set forth
below, we DISMISS the appeal as settled.
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant on
March 11, 2020, and by the agency on March 12, 2020. PFR File, Tab 10. The
document provides, among other things, that the appellant agreed to withdraw the
above -captioned appeal in exchange for the promises made by the agency. Id.
at 8.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may e nforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement and
understand it s terms but, for the following reasons, that they did not intend the
settlement agreement to be entered into the record for enforcement by the Board
in this appeal.
¶5 The settlement agreement provides that the parties agreed it would be
entered into the re cord for enforcement in another Board appeal, MSPB Docket
3
No. DA -0752 -20-0103 -I-1.2 PFR File, Tab 10 at 11. However, in response to an
e-Appeal Online prompt when submitting the settlement agreement in this
appeal, the agency indicated that the parties a greed that the settlement agreement
would be entered into the record for enforcement. Id. at 3. Given the conflicting
statements, the Board informed the parties that, if they wanted the settlement
agreement to be entered into the record for enforcement i n this appeal, they must
submit a properly executed amendment to that effect. PFR File, Tab 11.
Although the parties responded to the Board’s order, they did not submit an
amendment or otherwise address their intent regarding enforcement. PFR File,
Tabs 12-14.3 Therefore, pursuant to the unambiguous term of the settlement
agreement, we find that the parties intended the settlement agreement to be
entered into the record for enforcement in MSPB Docket No. DA -0752 -20-0103 -
I-1, but not in this appeal. See Greco v. Department of the Army , 852 F.2d 558 ,
2 Pursuant to this term, in a March 19, 2020 initial decision, the administrative judge
entered the March 2020 settlement agreement into the record for enforcement by the
Board in MSPB Docket No. DA -0752 -20-0103 -I-1. Hammond v. Department of
Defense , MSPB Docket No. DA -0752 -20-0103 -I-1, Initial Appeal File, Tab 33, Initial
Decision. On August 12, 2020, the appellant petitioned for enforcement of the
settlement agreement. Hammond v. Department of Defense , MSPB Docket No.
DA-0752 -20-0103 -C-1, Compliance File ( 0103 CF), Tab 1. In an October 7, 2020
compliance initial decision, the administrative jud ge found that the appellant failed to
show that the agency breached the settlement agreement and denied her petition for
enforcement. 0103 CF, Tab 16, Compliance Initial Decision. On November 11, 2020,
the appellant petitioned for review of the complianc e initial decision. Hammond v.
Department of Defense , MSPB Docket No. DA -0752 -20-0103 -C-1, Compliance Petition
for Review File, Tab 1. The appellant’s petition for review of the compliance initial
decision remains pending before the Board.
3 On Septembe r 20, 2021, the appellant submitted a copy of a December 11, 2020
motion she had filed in MSPB Docket No. DA -0752 -20-0103 -C-1 regarding alleged
agency noncompliance with the March 2020 settlement agreement. PFR File, Tab 12.
The agency moved to dismiss t he appeal as settled pursuant to the March 2020
settlement agreement and resubmitted a copy of the agreement. PFR File, Tabs 13 -14.
To the extent the appellant’s resubmission of her December 11, 2020 motion is an
attempt to challenge in this appeal the a gency’s compliance with the March 2020
settlement agreement, it is not properly before the Board, and we therefore need not
address it.
4
560 (Fed. Cir. 1988) (in construing the terms of a written settlement agreement,
the words of the agreement itself are of paramount importance in determining the
intent of the parties at the time they contracted). As the parties do not intend for
the Board to enforce the settlement agreement in this appeal, we need not address
the additional consi derations regarding enforcement, and we do not enter the
settlement agreement into the record for enforcement by the Board.
¶6 In light of the foregoing, we find that dismissing the appeal “with prejudice
to refiling” (i.e., the parties normally may not refil e this appeal) is appropriate
under these circumstances.
¶7 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights in cluded in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono re presentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC revie w of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
6
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourt s.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC b y regular U.S. mail, the
address of the EEOC is:
7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiri ng a signature, it must be 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 201 2. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 case s with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
If you submit a petition for judicial review to t he U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appe als can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HAMMOND_SCHWANDA_G_DA_1221_19_0492_W_1_FINAL_ORDER_1963180.pdf | 2022-09-23 | null | DA-1221 | NP |
4,095 | https://www.mspb.gov/decisions/nonprecedential/HASLEM_PATRICK_SEAN_DC_3443_20_0614_I_1_FINAL_ORDER_1963182.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PATRICK SEAN HASLEM,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
DC-3443 -20-0614 -I-1
DATE: September 23, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Patrick Sean Haslem , Severn, Maryland, pro se.
Dora Malykin , Esquire, Riverdale, Maryland, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the May 29, 2020 initial decision
in this appeal. Initial Appeal File, Tab 6 , Initial Decision ; Petition for Review
(PFR) File, Tab 1. For the reasons set forth below, we DISMISS the appeal
as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board's case law. See 5 C.F.R. § 1201.117 (c).
2
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS ”
signed and dated by the appellant on September 16, 2020, and by the agency on
September 18, 2020. PFR File, Tab 5. The document provides, among other
things, for the withdrawal of the appe al. Id.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into t he
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforcement by the Board. PFR File, Tab 5. In addition, we find that th e
agreement is lawful on its face and that the parties freely entered into it. Id.
¶5 Accordingly, we find that dismissing the appeal “with prejudice to refiling”
(i.e., the parties normally may not refile this appeal) is appropriate under these
circumstan ces, and we accept the settlement agreement into the record for
enforcement purposes. This is the final decision of the Merit Systems Protection
Board in this appeal. Title 5 of the Code of Federal Regulations,
section 1201.113 ( 5 C.F.R. § 1201.113 ).
3
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the sett lement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims an d carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is mos t appropriate in any matter.
4
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is t he court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
5
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discri mination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourt s.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for re view to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
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
Enha ncement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of compete nt jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judi cial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law b y the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono re presentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for th e courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HASLEM_PATRICK_SEAN_DC_3443_20_0614_I_1_FINAL_ORDER_1963182.pdf | 2022-09-23 | null | DC-3443 | NP |
4,096 | https://www.mspb.gov/decisions/nonprecedential/KULKARNI_ABHIJIT_DE_1221_19_0232_W_1_FINAL_ORDER_1963200.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ABHIJIT KULKARNI,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DE-1221 -19-0232 -W-1
DATE: September 23, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sayali Kulkarni , Salt Lake City, Utah, for the appellant.
Johnston B. Walker , Jackson, Mississippi, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the October 17, 2019 initial
decision in this appeal. Initial Appeal File, Tab 57, Initial Decision; Petition for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administra tive judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board's case law. See 5 C.F.R. § 1201.117 (c).
2
Review (PFR) File, Tab 1. For the reasons set forth below, we DISMISS the
appeal as settled.
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant on
May 7, 2020, and by the agency on May 8, 2020. PFR File, Tab 4. The
document provides, among other things, that the appellant agreed to withdraw the
above -captioned appeal in exchange for the promises made by the agency.2 Id.
at 4.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agr eement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
2 The waiver and withdrawal provision in this executed settlement agreement preserves
one issue for adjudication by the Board on petition for review:
The only exception to the waiver and withdrawal provisions in this
agreement are specific claims related to the determination that
Complainant belongs on Pay Table 1 that were not included in the EEO
cases referenced above. Complainant is not prohibited b y this agreement
from pursuing claims related to Pay Table determinations before the
MSPB, OSC, or any other forum. Therefore, MSPB case No. DE -1221 -
19-0158 -W-1 is dismissed except for the claim related to the pay table
demotion.
PFR File, Tab 4 at 4 -5. The Board will address the pay table retaliation demotion issue
in a separate order in Kulkarni v. Department of Veterans Affairs , MSPB Docket
No. DE-1221 -19-0158 -W-1.
3
settlement agreements that have been entered into the record, independe nt of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement and
understand its terms. PFR File, Tab 4. We further find that the parties do not
intend t o enter the settlement agreement into the record for enforcement by the
Board, as the agreement instead provides for enforcement through the equal
employment opportunity procedures set forth at 29 C.F.R. § 1614.504 .3 Id. at 6;
see Grubb v. Department of the Interior , 76 M.S.P.R. 639 , 642 -43 (1997)
(finding that the p arties intended the Equal Employment Opportunity
Commission, not the Board, to enforce a settlement agreement that provided for
enforcement in accordance with 29 C.F.R. § 1614.504 ). As the parties do not
intend for the Board to enforce the settlement agreement, we need not address the
additional considerations regarding enforcement and do not enter the settlement
agreement into the record for enforcement by the Board.
¶5 In light of the foregoing, we find that dismissing the petition for appeal
“with prejudice to refiling” (i.e., the parties normally may not refile this appeal)
is appropriate under these circumstances. This is the final decision of the Merit
Systems Protection Board in this appeal. Title 5 of the Code of Federal
Regulations, section 1201.113 ( 5 C.F.R. § 1201.113 ).
3 In response to an e -Appeal prompt when submitting the settlement agreement in th is
appeal, the agency indicated that the parties agreed that the settlement agreement would
be entered into the record for enforcement by the Board. PFR File, Tab 4 at 3.
However, the settlement agreement itself provides that, if the appellant believes t he
agency has failed to comply with a term of the settlement agreement, he must notify the
agency in writing of the alleged breach within 30 days and then may file an appeal with
the Equal Employment Opportunity Commission pursuant to 29 C.F.R. § 1614.504 . Id.
at 6. As the words of the agreement itself are of paramount importance in determining
the intent of the parties at the time they contracted, we find that the parties did not
intend the settlement agreement to be entered into the record for enforcement by the
Board but instead for the appellant to pursue enforcement through the alternate process
specified in the agreement. See Greco v. Department of the Army , 852 F.2d 558 , 560
(Fed. Cir. 1988).
4
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time l imits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your par ticular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioner s and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our websit e at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney wi ll accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your repres entative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
6
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial revi ew pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8 ) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
7
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Fe deral Circuit or any court
of appeals of competent jurisdiction.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.ms pb.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 represen tation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts. gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | KULKARNI_ABHIJIT_DE_1221_19_0232_W_1_FINAL_ORDER_1963200.pdf | 2022-09-23 | null | DE-1221 | NP |
4,097 | https://www.mspb.gov/decisions/nonprecedential/KULKARNI_SAYALI_DE_1221_19_0231_W_1_FINAL_ORDER_1963207.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SAYALI KULKARNI,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DE-1221 -19-0231 -W-1
DATE: September 23, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Abhijit Kulkarni , Salt Lake City, Utah, for the appellant.
Johnston B. Walker , Jackson, Mississippi, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the October 17, 2019 initial
decision in this appeal. Initial Appeal File, Tab 58, Initial Decision; Petition for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Review (PFR) File, Tab 1. For the reasons set forth below, we DISMISS the
appeal as settled.
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant on
May 7, 2020, and by the agency on May 8, 2020. PFR File, Tab 4. The
document provides, among other things, that the appellant agreed to withdraw the
above -captioned appeal in exchange for the promises made by the agency.2 Id.
at 4.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agr eement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
2 The waiver and withdrawal provision in this executed settlement agreement preserves
one issue for adjudication by the Board on petition for review:
The only exception to the waiver and withdrawal provisions in this
agreement are specific claims related to the determination that
Complainant belongs on Pay Table 1 that were not included in the EEO
cases referenced above. Complainant is not prohibited by this agreement
from pursuing claims related to Pay Table determinations before the
MSPB, OSC, or any ot her forum. Therefore, MSPB case No. DE -1221 -
19-0157 -W-1 is dismissed except for the claim related to the pay table
demotion.
PFR File, Tab 4 at 4 -5. The Board will address the pay table retaliation demotion issue
in a separate order in Kulkarni v. Depa rtment of Veterans Affairs , MSPB Docket
No. DE-1221 -19-0157 -W-1.
3
settlement agreements that have been entered into the record, independe nt of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement and
understand its terms. PFR File, Tab 4. We further find that the parties do not
intend t o enter the settlement agreement into the record for enforcement by the
Board, as the agreement instead provides for enforcement through the equal
employment opportunity procedures set forth at 29 C.F.R. § 1614.504 .3 Id. at 6;
see Grubb v. Department of the Interior , 76 M.S.P.R. 639 , 642 -43 (1997)
(finding that the parties intended the Equal Employment Opportunity
Commission, not the Board, to enforce a settlement agreement that provided for
enforcement in accordance with 29 C.F.R. § 1614.504 ). As the parties do not
intend for the Board to enforce the settlement agreement, we need not address the
additional considerations regarding enforcement and do not enter the settlement
agreement into the record for enforceme nt by the Board.
¶5 In light of the foregoing, we find that dismissing the petition for appeal
“with prejudice to refiling” (i.e., the parties normally may not refile this appeal)
is appropriate under these circumstances. This is the final decision of the M erit
Systems Protection Board in this appeal. Title 5 of the Code of Federal
Regulations, section 1201.113 ( 5 C.F.R. § 1201.113 ).
3 In response to an e -Appeal prompt when submitting the settlement agreement in this
appeal, the agency indicated that the parties agreed that the settlement agreement would
be entered into t he record for enforcement by the Board. PFR File, Tab 4 at 3.
However, the settlement agreement itself provides that, if the appellant believes the
agency has failed to comply with a term of the settlement agreement, she must notify
the agency in writing of the alleged breach within 30 days and then may file an appeal
with the Equal Employment Opportunity Commission pursuant to 29 C.F.R. § 1614.504 .
Id. at 6. As the words of the agre ement itself are of paramount importance in
determining the intent of the parties at the time they contracted, we find that the parties
did not intend the settlement agreement to be entered into the record for enforcement by
the Board but instead for the a ppellant to pursue enforcement through the alternate
process specified in the agreement. See Greco v. Department of the Army , 852 F.2d
558, 560 (Fed. Cir. 1988).
4
NOTICE OF APPEAL RIG HTS4
You may obtain review of thi s final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and caref ully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appe llant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in an y matter.
5
U.S. Court of Appeal s
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
6
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accesse d through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you r eceive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later tha n 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises n o challenge to the Board’s
7
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relev ance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals f or the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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 jurisdicti on.
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 b y any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | KULKARNI_SAYALI_DE_1221_19_0231_W_1_FINAL_ORDER_1963207.pdf | 2022-09-23 | null | DE-1221 | NP |
4,098 | https://www.mspb.gov/decisions/nonprecedential/BIHLER_PAUL_DE_0752_20_0393_I_1_FINAL_ORDER_1963238.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PAUL BIHLER,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DE-0752 -20-0393 -I-1
DATE: September 23, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jennifer D. Isaacs , Esquire, Atlanta, Georgia, for the appellant.
Stephen Coutant , Fort Carson, Colorado, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 After issuance of the initial decision in this appeal, the parties no tified the
Board that they had settled the appeal. Petition for Review (PFR) File, Tab 1;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Initial Appeal File, Tab 21, Initial Decision.2 For the reasons set forth below, we
DISMISS the appeal as settled.
¶2 On April 8, 2021, the parties submitted a documen t entitled “Negotiated
Settlement Agreement for [this MSPB case]” signed and dated by the appellant
on April 6, 2021, and by the agency on April 7, 2021. PFR File, Tab 1. The
document provides, among other things, for the dismissal of the above -captioned
appeal. Id. at 5.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enfo rcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agree ment into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforcement by the Board . PFR File, Tab 1. In addition, we find that the
agreement is lawful on its face and that the parties freely entered into it. Id.
Accordingly, we find that dismissing the appeal “with prejudice to refiling” (i.e.,
the parties normally may not refile th is appeal) is appropriate under these
2 As the initial decision had already been issued and become final by the time the
parties noti fied the Board of their settlement agreement, the submission was considered
and docketed as a petition for review of the initial decision. PFR File, Tabs 1 -2.
3
circumstances, and we accept the settlement agreement into the record for
enforcement purposes.
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulat ions, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, eit her party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summ ary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which case s fall within their
jurisdiction. If you wish to seek review of this final decision, you should
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 noti ce of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular foru m is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S .
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petiti on for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayme nt of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims onl y, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 2 0507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Cour t of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitione rs and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our websi te at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney w ill accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BIHLER_PAUL_DE_0752_20_0393_I_1_FINAL_ORDER_1963238.pdf | 2022-09-23 | null | DE-0752 | NP |
4,099 | https://www.mspb.gov/decisions/nonprecedential/HUTCHINSON_DIANA_LEE_DC_3443_21_0072_I_1_FINAL_ORDER_1963257.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DIANA LEE HUTCHINSON ,
Appellant,
v.
EXECUTIVE OFFICE OF THE
PRESIDENT, OFFICE OF
ADMINISTRATION,
Agency.
DOCKET NUMBER
DC-3443 -21-0072 -I-1
DATE: September 23, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Diana Lee Hutchinson , Arlington, Virginia, pro se.
John Kevin Fellin , Esquire, and Raheemah Abdulaleem , Esquire,
Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been id entified by the Board
as significantly contributing to the Board's case law. See 5 C.F.R. § 1201.117 (c).
2
FINAL ORDER
¶1 The appellant has petitioned for review of the December 7, 2020 initial
decision in this appeal. Petition for Review ( PFR ) File, Tab 2. For the reasons
set forth below, we DISMI SS the appeal as settled.
¶2 After the filing of the petition for review, the parties submitted documents
captioned “Notice of Withdrawal and Request for Dismissal” and “Settlement
Agreement and Release” signed and dated by the appellant on April 9, 2021 , and
by the agency on April 23, 2021. PFR File, Tab 7. The document s provide,
among other things, for the dismissal of the appeal pursuant to a settlement
agreement. Id.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board . See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and do not intend for the agreement to be entered into the
record for enforcement by the Board. PFR File, Tab 7. Rather, any alleged
breach will be remedied via the procedur es set forth in 29 C.F.R. § 1614.504 . As
the parties do not intend for the Board to enforce the settlement agreement, we
need not address the additional considerations regarding enforc ement and do not
enter the settlement agreement into the record for enforcement by the Board.
3
¶5 Accordingly, we find that dismissing the appeal “with prejudice to refiling”
(i.e., the parties normally may not refile this appeal) is appropriate under these
circumstances.
¶6 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appro priate 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
immediate ly review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the t hree main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the c ourt at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc. uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an app eal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neithe r 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 tha t you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
5
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourt s.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC b y regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiri ng a signature, 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 201 2. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice descri bed in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition fo r judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional info rmation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules o f Practice, and Forms 5, 6, 10, and 11.
3 The original statutory provision that provided for judicial review of certain
whistleblo wer claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HUTCHINSON_DIANA_LEE_DC_3443_21_0072_I_1_FINAL_ORDER_1963257.pdf | 2022-09-23 | null | DC-3443 | NP |
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